Opinion filed October 8, 2009



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 08 -0 00 36 -CV

____ ____ __ HEN DR ICK M EDIC AL CEN TER , A ppellant

vs. GEOR GE C ONG ER, IND IVID UA LLY AN D IN THE ESTA TE OF MON A C ONG ER, Ap pellee
On App eal from the 42nd District Court Taylor County, Texas Trial Court Cause No. 46656-A
O P I N I O N I n this health car e liability claim, Hendr ick M ed i ca l Center believe d that the expert repor t filed by Geor g e Cong er f

or himself and f

or the estate of

Mona Cong er w as inade quate, a nd it filed a motion to dism iss in accor dance wi t h t he provisions of T EX
. C IV
. P R AC
. & R EM
. C ODE ANN
. § 74.351(b) ( Ver

non Supp. 2008). The trial c ourt disag ree d with Hendric k and denied the motion. We reve rse a

nd rema nd. He nd ri c k c ha lle ng e s th e tr ia l c ourt ’s ru lin g wi th two iss ue s. F ir st, He nd ri c k ta ke s is su e wi th the trial cour

t’s failing to dismi ss Georg e Cong er’ s claim bec ause he filed an i n s u ff i ci ent expert repor t. I n its second i ssue, Hendrick asserts that the t rial court should have dismi ssed the vica rious2

lia bil ity c la ims fi le d b y

Con g e r b e c a

us e the e xpe rt

re po rt that he fi le d w a s in su ffici ent a s to tho se
c la ims

. Mona Cong er die d afte r havingcar diac by pass surg ery

at Hendr ick. M o n a

Co n g e r u nderw ent the proc edure afte r testing perf ormed upon he r re veale d multi-vessel disease. Following Mona Cong er’ s d e a th , G e o r g e Co n g e r

s u e d Hendr ick alleg ing that Mona Conge r’s ri g ht s ub c lavia

n a rt e ry had be e n la c e rate d d ur ingc e ntr a l li ne pla c e me nt r e la te d to c ard ia c by pa ss
surg e ry . G e or g e Con g e r a sse rt e d that the la c e ra tio n re su lte d in a

ple ur a l he ma tom a

and ult imate ly led to her de ath. Cong er a lso sued the phy sician who pe rfor med t he surge ry . The phy sician is not

a pa rt y to t his a pp e a l. I n h is c la im a g a ins t H e nd

ri c k, Con g e r g e ne ra lly

say s th a t H e nd

ri c k, b y a n d t hr ou g h it s a g e nts , e mpl oy e e s, vic e -p ri nc ipa ls, and bo rr ow e d s e rv a

nts , f a ile d to us e the or din ary

c are that a

re a so na ble and prude nt org anization in like circ umstances would have use d in the treatment of Mona Cong er. Conge r fur

ther g ener ally alleg es that Hendr ick brea ched that standard of car e by “fa iling to deve lop,

e mpl oy , mo nit or , a

nd fo llow a pp ro pr ia te po lic ie s a

nd pr oc e dure s w ithre g ard

to t he a sse ssm e nt, tr e a tme nt, mana g e me nt a

nd ov e rs ig ht of patie nts ” lik e Mo na Con g e r. Con g e r a lso c la ime d g e ne ra lly that Hendr ick fa iled “to train, e mploy , reta in, supervise, and provide appropriate personne l to carr y
ou t” tho se po lic e s and

pr oc e dure s. “ F ur

therm ore, He nd

ri c k M e dic a l Ce nte r i s v ic ari ou sly lia ble under r espondent [sic] s uperior f or the a cts and omissions of it’s [ sic] employ ees.” Specifica lly , Conge r said that Hendrick should have had policies a nd proce dures that addre ssed the timely

interpre tation of X-r ay s that w ere taken in the Intensive Care Unit following surg ery
. I t also should have ha d policies and proc edure s that addre ssed the importanc e of monitoring persons like Mona Cong er f or complications resulting fr om by pass s urg ery
. Conge r allege d that the standard of

car e would re quire those p o l i ci es and procedure s and that He ndrick bre ache d that standard by not having them. Finally , he say s that the brea ch dire ctly cause d Mona Cong er’ s death. When a par

ty files a medic al m alpra ctice action, he must serve an expert re port within 120 day s of the filing of the pe tition. T EX
. C IV
. P R AC
. & R EM
. C ODE ANN
. § 74.351(a) (Ve rnon Supp. 2008). The r eport must be author ed by an expert. An e x pert is one who is shown to be qualified by

re as o n of knowledg e, skill, training, e x perie nce, or educa tion to address the c laim. T EX
. R. E V ID
. 702. Additionally , in order to qualify as an expert to opine on the breach of a st andar d of care, w here3

the de fe nd ant i s not a phy sic ian, the a uth or mus t showthat he me e ts t he qu a lif ic a tio ns se t f

or th i n T EX
. C IV
. P R AC
. & R EM
. C ODE ANN . § 74.351(r) (5)( B) (Ve rnon Supp. 2008). The propone nt of an e x pert re port has the bur den to show that the e x pert is qualified. Br od e rs v . H e ise , 9 24 S.W. 2d

14 8, 15 1- 52 (T e x. 19 96 ). Th e ex pert re po rt mus t pr ov ide a

fa ir summary of the e x pert’s opinion re g ardingthe applica ble standard of car e, the manner in which the

car e re ndere d failed to meet the standard, and the causa l r elationship betwee n the failure to me et the standard and t he inj ury
. T EX
. C IV
. P R AC
. & R EM
. C ODE ANN . § 74.351(r) (6) ( Ver non Supp. 2008). When the writer of

a re port mere ly states the expert’s conclusions about the standard of ca re, br eac h, and ca usation, the repor

t does not meet the purpose s of the statute. Am. Transiti onal Care Ctrs . of Tex., Inc . v. Palacios , 46 S.W .3d 873, 879 (Tex. 2001). I f the author of the re port omits any

of the statutory require ments, the repor

t does not constitute a g ood faith ef fort to comply

with the statute. Id

. A trial cour

t must di smiss a health ca

re liability

claim if it determines that the repor t does not repr esent a

g ood faith ef

fort to comply with the re quirements of the statute. See J ernigan v. Langley , 11 1 S. W.3 d 1 53 , 1 56 (T e x. 20 03 ); Sim on so n v . Ke pp ar d , 225 S.W .3d 868, 871 (Tex. App.—Dallas 2007, no pet.). How ever , if a trial c ourt dee ms that a timely repor t is defic ient, it has the discre tion to gr ant one thirty -day

extension during which the proponent of the repor t can attempt to cure the defic iency . T EX
. C IV
. P R AC
. & R EM
. C ODE ANN . § 74.351(c) (Ve rnon Supp. 2008). When Conge r filed his petition, he attac hed a medical report by Dr. Steven Thompson. L ater , Conge r filed a

n am en d ed re p o rt from Dr . Thompson. Conge r also filed a repor t from a nur se, Carrie S. Upton. Hendr ick fil ed a motion to dismiss as provided f or by Section 74.351(b). The trial court de nied the motion, and this appea l followed. A trial cour

t’s decision to deny

a motion to dism iss based on Section 74.351(b) is reviewe d fo r an abuse of discr etion. Bowie Mem ’l Hosp. v. W right , 7 9 S. W. 3 d 4 8 , 5 2 ( T e x. 2 0 0 2 )

. To deter mine whether

a trial c ourt abused its discretion, we must decide whe ther the tria l court ac ted without refe renc e to any

g uiding r ules or principles; in other words, we must decide whe ther the a ct
was a rbitrar y or unre asonable

. Downer v. Aquam arine Operators, Inc

. , 701 S.W .2d 238, 241-42 (Tex. 1985).4

First, Cong er c laims that this cour t h as n o j u ri sdiction to hear this appe al. The c ourt’s decision in Le wis v . F

un de rb ur k , 253 S.W .3d 204, 207-08 (Te x . 2008), has r esolved that issue, a nd

we have jurisdiction to enter tain this interloc utory

appea l. See T EX
. C IV
. P R AC
. & R EM
. C ODE ANN
. § 51.014(10) ( Ver

non 2008). I n its mot ion to dism iss, Hendrick pointed out to the trial c ourt that the re port of Nur se Upton had bee n serve d more than 120 day s afte r the pe tition was filed and wa s, theref ore, not timely . When the trial cour

t denied the motion to dismi ss, it denied the motion in its entirety

. There fore , it denied Hendr ick’s cla im that Nurse Upton’s r ep o rt was not timely . Hendr ick claims that that denia l was

err or. The r ecor d shows that Conge r ser ved Nurse Upton’s re port more than 120 da y s after the petition wa s filed; it was not timely

. See Section 74.351(a)

. Hendr ick’s complaint is sustained. The only timely repor t before the trial cour

t and this court is the amende d repor t from Dr. Thompson. An “e x pert re port” is a writ ten re port by an expert that provides a fair summar

y of the exper t’ s o p in io n s a s o f th e d a te o f th e r e p o rt r e g ar d in g ( 1 ) a p p li c a b le s ta n d a r d s o f c are , (2) the

mann e r in wh ic h the c are re nd e re d fa ile d to me e t the sta nd ard s, and (3 ) the c a

us al r ela tions hip betwee n that failure and the injury , harm, or da mag es cla imed. Section 74.351(r) (6). The repor t
mus t be sig ne d “ by

a pe rs on wi th k no wl e dg e , t rai ni ng , o r e xpe ri e nc e c on c e rn ingthe a pp lic a ble standard of

car e.” In re M

cAllen Me d. Ctr., Inc. , 2 75 S.W. 3d 45 8, 46 2 ( Te x. 2008 ); se e als o Section 74.351(r) (5)( B) . “The standard of car e for a hospi tal is what an ordinarily prudent hospital would do under the same or similar c ircumstance s.” McAllen M edical , 275 S.W .3d at 463 (c iting Palacios , 46 S.W .3d at 880). Hendr ick complains that Dr. T hompson’s repor t is de f ic ient for se vera l rea sons, one of whic h is that he is n ot s ho wn

to b e qu a lif

ie d to re nd e r a

n e xpe rt op ini on on any of the c la ims a g a ins t it

. Dr. Thompson’s re port shows that he is boa rd cer tified in inter

nal medicine a

nd that he is an

emer g ency

room phy sician. He h as b een a n intensive ca

re unit “attending” and wa s also an

emer g ency

room medica l director. Fi n al ly , at the time his repor t was written, Dr . Thompson was the dir e c tor

of ho sp ita lis ts a

nd the e me rg e nc y

ro om p hy sic ians a t a

ho sp ita l in

Da lla s. Dr . T ho mps on state s in his re po rt : “ I a m fa mil iar wi th the dia g no sis and tr e a tme nt o f p os topera tiv e p a ti e n ts

. T h u s b y e d u c a ti o n , tr a in in g an d

e xp e r ie n c e Ia m q

u a li f ie d to r e n d e r ane xp ert opinion in thi s matter.” H e does not say that he is familiar w ith the formul at i o n o f p o l icies and5

proce dures by

hospita l s i n t h e I CU setting similarly situated to that situation or circumstanc e of Hendr ick. I n his pe tition, Cong er’ s direc t liabilit y claims ag ainst Hendric k are limit ed to its alleg ed fa ilure s in re g ard to f or mul a tio n o f p oli c ie s a

nd pr oc e dure s. As to t he sta nd ard of c are a pp lic a ble to H e nd

ri c k, Dr . T ho mps on

op ine s in his re po rt : The standa

rd of c are for a

hospital intensive car e unit (I CU) is to provide the safe st possibl e medica l outcome for the ir patients. Specifica lly , the standar d of ca re for He n dr ic k M e d ic a l Ce n te r is to e n s ur e th a t x- r ay s ar e r e a d an d in te r p r e te d in a timely ma

n n e r
. T im e ly ma

n n e r in th e I CU s e tt in g is im me d iate

. Po li c ie s and proce dures should have been implemented to c reate a re producible pattern to reduc e the likelihood that mistakes will be made. Hendr ick Medica l Center bre eche d [si c] the sta nd ard of c are by fai lu re to have po lic ie s and pr oc e dure s in

pla c e that w ou ld have e nsured the timely

interpre tation of t he chest x -ra y perf ormed in the Intensive Care U nit. Specifically , the standar d of ca re w as bre eche d [si c] since the chest x-ray was not re ad or inter

prete d in a timely

manner
. Dr. Thompson also stated:
Fur thermore , either the radiolog y technicia n or the I CU staff should have made a cursor y revie w of the chest x -ra

y . There was a bree ch [sic] in the standard of car e by Hendr ick Medica l Center employ ees since nobody revie wed the c hest x -ra

y . The i n t er v al ch an ge in t h e ch es t x -r ay wo u l d h av e be en o b v i o u s t o t h e r a d i o l o gy technicia n or t he I CU Staff. Hendrick Medic al Center should have had policie s and proce dures in plac e to ensure x -ra y s are rea d and int erp re t ed in a timely manner , es p ec i al l y i nt h e ICU s et t i n g. Hendr ick ar g ues that it is not established within the four cor n er s o f t he re port that Dr. Thompson has any familiarity , training , or ex perie nce that would allow hi m to opine as to t he standard of

car e in formulating policies and proc edure s at the hospital level in the I CU. We ag ree
. Dr . T ho mpson’ s qua lif

ic a tio ns mus t be sh ow n w ith in t he fo ur c or ne rs of the re po rt

. Palacios , 46 S.W .3d at 878. The r eport shows his experience as a board c ertified inter nist, an

emer g ency room phy sician and direc tor, an I CU “attending ,” and direc tor of hospitalists and

em er gen cy

ro o m p h y s i ci an s
. Dr

. T h o mp s o ns ai d n o t h i n g i n t h e re p o rt ab o u t h i s k n o wl ed ge, t ra i n i n g, or experienc e conc erningthe applica ble standar d of ca

re involved here – the formulation of hospital policies and proc edure s in an I CU setting. He has not shown himself to be qualifie d to rende r an opinion on “what an or dinarily prudent hospital would do under the same or simil ar c ircumstance s.” McAllen M

edical , 2 7 5 S

. W

. 3 d

at 4 6 3 (c i t i n g Palacios , 46 S.W .3d at 880).6

Whil e Dr . Thompson may be qualifie d to testify as an expert in other area s, we a re c onfined to the four c orner s o f t he re port, and it is not shown within t he four corne rs of his re port that Dr

. Th omp so n is an e xpe rt qu a lif ie d to g ive an op ini on on wh a t an o rd ina ri ly pr ud e nt h os pit a l w ou ld do under these or simil ar circ umstances. See R eed v . Granbury Hosp. Corp. , 117 S.W .3d 404, 410- 1 1 (T ex
. Ap p.—For

t Worth 2003, no pet.) (rec ord did not show that purported e x pert ha d “any specia l knowledg e about what protocols, policies, or proc edure s a hospital of ordinar y prudenc e, with the Hospital’s ca

pabilities, would have ha d in place” ). Dr. T hompson’s repor t is, therefor e, defic ient as to the direc t health ca re liability

claims ag ainst Hendric k. Conge r also filed vic arious hea lth care liability claims ag ainst Hendrick

. I t as serts that Dr . T ho mps on ’s re po rt

fa ils to n a me any of the e mpl oy e e s f or wh ic h Co ng e r c la ims He nd ri c k is responsible. The repor

t also fails to name the occupation or job descriptions of those alleg ed to bind Hendr ick vicar iously

except to say , “[E] ither the ra diology technicia n or the I CU staff should have made a cursor y revie w of the c hest x -ra y .” Ag ain, we a g ree with Hendric k. No t o n ly has Dr . T ho mps on

no t se t f or th h is q ua lif ic a tio ns to g ive an o pin ion on the sta

nd ard of c are a pp lic a ble to r a d i o l o g y t e c h n i c i an s an d I C U s t a f f , b u t h e a l s o d o e s n o t s ay w h o t h e s e p e o p l e ar e , wh a t th e ir duties were , why

he is familiar w ith the s tandar d of care applicable to the var ious persons involved, or what the standard of

car e is for e ach dif

fer ent position. He sim p l y gi v es h i s o p inion that they should have re ad the X- ray , they did not, and it caused Mona Conge r’s de ath. Without setting out at least the job de scriptions of those involved in this case (and we are not to be taken a s holding that would be enoug h to satisfy the statute) a

nd for whom a

nd why Hendr ick i s alleg ed to be re sponsible, it would be impossibl e for Dr. Thompson to state the standa rd of c are applicable t o those persons and that he w as q u al i fi ed to give an e x pert opinion on that standar d of ca re. The re is no attempt wi t h i n t h e fo u r corners of the re port to show that Dr. Thompson had know ledg e, tra ining, or experience conce rning the standar d of care, in a n I CU setting, a

pplicable to any

member of

the staff who might have been involved in the treatment of Mona Conge r. Standing alone, the fa ct that Dr. Thompson is shown to be a phy sician does not show him to be qualified a s an expert with respe ct to a ll health car e provide rs. Br od e rs , 924 S.W .2d at 153. For the re asons we ha

ve stated, the repor

t

a s to the vic ari ou s li a

bil ity c la ims a g a ins t H e nd

ri c k is de fi c ie nt.Barko v. G enzel , 123 S.W .3d 457 (Tex. App.—Eastland 2003, no pet.)

. 1
7 He nd ri c k a rgue s th a t th e re are oth er reas on s wh y the tr ia l c ourt

sh ou ld h a ve su sta ine d it s objections. I t ar gues that, eve n if Dr. Thompson had be en shown to be qua lified on the standar ds of ca re, his opinions on the brea ch of those sta n d ar d s of ca

re a nd the re lation of the bre ach to the

cause of death are conclusory

. We a g ree
. A conclusory statement is one that ex p re s s es a f actual infere nce w ithout st ating the under ly ing f acts on w hich the infe renc e is based. Ar k om a B as in Exploration Co. v. FMF Assocs. 1990- A, Ltd. , 249 S.W .3d 380, 389 n.32 (Tex. 2008). Dr . T ho mps on

state d th a t H e nd

ri c k s ho uld

have imp le me nte d p oli c ie s a nd pr oc e dure s to “re duce the likelihood that mistakes will be made.” He opines that Hendr ick breache d that standard of ca re by failing to have those policies and procedure s in place

. Howeve r, he doe s not say that he had eve r examined the policies and pr ocedur es at Hendrick a s they relate to the I CU or ra diologica l setting or how he kne w that they

had no such policie s and proc edure s in place; he simply decla res that Hendr ick should ha

ve had them but did not a nd that that brea ch broug ht a bout a long c hain of medical pr oblems that, one upon the other, ultimately cause d Mona Conge r’s death. Dr. Thompson express es factual infer ence s without stating the under ly ing f acts upon whic h those infer ence s are based. See id. The same is equally

true a s to the vicarious c lai m s aga inst Hendrick. Dr . Thompson conclusively

states that, if the radiology technicia n or som eone else i n the I CU had reviewe d the Xray ear lier, Mona Cong er c oul d have be en re turned to surg ery ear lier and the same long chain of medical pr oblems, one upon the other , would not have occur red and would not have c aused Mona Conge r’s de ath. Ag ain, Dr. Thompson e x presse s fac tual infere nces w ithout st ating the under ly ing fac ts upon which those infer ence s are based. Se e id

. Hendr ick also ar g ues that our de cision in Barko require s that Dr. Thompson eliminate the 1 hear t surg ery or hea rt disease a s the ca

use of the c ardia c ar

rest that pre cipitated the c hain of medic al events prior to Mona Conge r’s de ath. I n Barko , the claimant ha d a prior ba ck surg ery . She reinjure d her back and went to a

n emer g ency

room. Dr. Ge nzel, the phy sician ag ainst whom the hea lth care liability claim was f

i l ed , ex ami ned her , presc ribed pa in medication, and a dvised her to se e her

ne ur os ur g e on
. She la te r re tur ne d to the e me rg e nc y ro om, wa s g ive n mor e me dic ine , and a g a in t old8

to see he r neurosurg eon. We held t hat a medical report in that case was deficient for a number of

re a so ns . A s to on e of

tho se re a so ns , w e sa id: [T] he re ports do not indicate that appellant would have satisfactorily rec overe d from the bac k injury

but for Dr . Genzel’s allege d neg lige nce. The reports do not state that back sur g ery

would have be en a voided without Dr. Ge nzel’s alleg ed neg lige nce. Fur thermore , the repor

ts make no attempt to eliminate either the back injury itself or the attempt t o surg ically

repa ir it as a potential ca

use of the pe rmane nt neurolog ical damag e. Barko , 123 S.W .3d at 460-61. For all of t he reasons we have discussed, we hold that the report is defic ient to support either the direc t health ca

re liability

claims or the vica

rious liability claims. Hendr ick’s first and sec ond issues are sustained. Hendr ick has a sked us t o hold that the repor t as to the vicar ious liabili ty claims is so deficient that it is t antamount to no repor t. We decline to make that holding. Se e Og le tre e v . M att he ws , 262 S.W. 3d 31 6, 32 0, 32 1 ( Te x. 20 07 ) ( Expe rt repo rt did no t me nti on

Dr . O g le tr e e ’s name , b ut h is conduct wa s impli cate d. The re port was de ficient, not abse nt, and the trial c ourt could g rant a n extension). The Te x as Supreme Court ha s held that, beca use we have held inadequate a r eport that the tr ia l c ourt fo un d a de qu a te , th e pr op e r d isp os iti on of thi s a pp e a l is to r e mand

to t he tr ia l c ourt

fo r i t to consider whe ther to g rant Cong er a thirty -day

exten s i o n t o cure the def ects unde r S ec t i o n 74.351(c)

. Gardner v. U .S. Imaging , Inc. , 2 7 4 S. W. 3 d 6 6 9 , 6 7 0 , 6 7 1 n
. 1 ( T e x. 2 0 0 8 ); Leland v. Brandal , 257 S.W .3d 204, 207-08 (Te x . 2008). This cause is rever sed and r emande d to the trial court for that court to dec ide whethe r to g rant a thirty -day

extension under Section 74.351(c)

.

J I M R. W RI GHT CH I EF JUSTI CE October 8, 2009 Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.