Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-12-00319-CV

PETERSON REGIONAL MEDICAL CENTER,

Appellant

v.

Laurie M. O’CONNELL, Individually 

and as the Representative of the Estate of Kenneth Mayhew,

Appellees

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. 11-957-A

Honorable N. Keith Williams, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Marialyn Barnard, Justice

Delivered and Filed: November 14, 2012

AFFIRMED

This is an interlocutory appeal of the trial court’s order denying Peterson Regional 

Medical Center’s (“Peterson”) motion to dismiss. The motion to dismiss asserted Laurie M. 

O’Connell failed to serve expert reports complying with Texas Civil Practice and Remedies 

Code section 74.351. On appeal, Peterson argues the reports of Robert Tan, M.D., and Alexis 

Williams, R.N., are deficient as a matter of law and the trial court erred in denying its motion to 

dismiss. We affirm.
04-12-00319-CV

- 2 -

BACKGROUND

O’Connell filed suit against Peterson asserting claims for negligence allegedly resulting 

in the death of her father, Mr. Kenneth Mayhew. Mayhew, a man in his nineties, was admitted 

to the Emergency Room of Peterson Regional Medical Center on March 15, 2010, after 

complaining of a temporary loss of consciousness. Mayhew suffered a fall prior to his arrival at 

the emergency room. Upon admission, Mayhew received a head CT scan that showed “no 

evidence of acute blood, midline shift or tumor.” Mayhew was administered intravenous 

morphine and Ativan. Approximately one hour after the administration of the morphine and 

Ativan, Mayhew, unsupervised, suffered a second fall sometime between 3:30 a.m. and 4:30 a.m. 

on March 16, 2010. After the fall, Mayhew received a second head CT scan that detected a 

“right frontal subarachnoid hemorrhage and a frontal scalp hematoma.” Mayhew was 

subsequently sent by ambulance to Brooke Army Medical Center where he was later placed on 

life support machines. He died shortly thereafter. 

After filing suit alleging negligence in leaving Mayhew unsupervised after administering 

drugs known to cause falls in the elderly, O’Connell timely served Peterson with the expert 

reports and curricula vitae of Robert Tan, M.D., and Alexis Williams, R.N. Peterson objected to 

both reports as insufficient and moved to dismiss. Specifically, Peterson argued (1) Dr. Tan was 

not qualified to render an expert opinion on the negligence of a health care provider that is a 

hospital; (2) Dr. Tan’s report did not provide a fair summary of his opinions; and (3) Williams’s 

report did not provide a fair summary of her opinions because she failed to identify the 

documents she reviewed. After a hearing, the trial court overruled Peterson’s objections and 

denied its motion to dismiss.
04-12-00319-CV

- 3 -

STANDARD OF REVIEW 

On appeal, Peterson complains the expert reports of Williams and Dr. Tan fail to meet the 

requirements of the Texas Civil Practice and Remedies Code chapter 74 and thus the trial court 

erred in denying its motion to dismiss. We review a trial court’s ruling on a motion to dismiss a 

case under section 74.351 for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. 

Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if its decision is 

arbitrary, unreasonable, and without reference to any guiding principles and rules. Bowie Mem’l 

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). 

“A court shall grant a motion challenging the 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 in Subsection (r)(6).” TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(l) (West 2008). If a trial court fails to analyze or apply the law correctly, it 

has abused its discretion. Jorgensen v. Tex. MedClinic, 327 S.W.3d 285, 287 (Tex. App.—San 

Antonio 2010, no pet.).

EXPERT QUALIFICATION

In its motion to dismiss, Peterson asserted Dr. Tan was not qualified to render an opinion 

in a suit against a health care provider because his curriculum vitae does not identify him as ever 

having served as a director or administrator of an acute care hospital and, thus, he is not qualified 

to render an expert opinion on the negligence of a hospital such as Peterson Regional Medical 

Center.

A person may qualify as an expert witness on the issue of whether a health care provider 

departed from accepted standards of care only if the person (1) is practicing health care in a field 

of practice that involves the same type of care or treatment as that delivered by the defendant 
04-12-00319-CV

- 4 -

health care provider; (2) has knowledge of accepted standards of care for health care providers 

for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and 

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those 

accepted standards of health care. TEX. CIV. PRAC. & REM. CODE § 74.402(b). In making a 

determination of whether a particular expert is qualified, the statute does not focus on the 

person’s title, but rather centers on the expert’s training, experience and knowledge of the 

standards of care applicable to the “illness, injury, or condition involved in the claim.” See id. 

(emphasis added). 

Dr. Tan is a board-certified physician specializing in geriatric medicine. He is boardcertified in both family medicine and geriatrics medicine. For the sixteen years prior to writing 

the report, he served as a medical director for various long-term care facilities and has received 

certification through the American Medical Directors Association. Dr. Tan’s report states, as a 

geriatrician, he would typically care for patients such as Mayhew. 

While Dr. Tan does not hold the title of a hospital administrator, at issue is the standard 

applicable to Mayhew’s condition, which in this case is the care of a man in his nineties after the 

administration of drugs known to cause falls in the elderly. A review of Dr. Tan’s qualifications 

shows he has the training, experience, and knowledge of the standard of care and treatment of 

elderly patients such as Mayhew. We conclude the trial court did not abuse its discretion in 

denying Peterson’s motion to dismiss based of Dr. Tan’s alleged lack of qualifications to render 

an opinion.

FAIR SUMMARY

Peterson also complains neither Dr. Tan’s report nor Williams’s report provides a “fair 

summary” of their opinions. Section 74.351 requires a health care liability claimant to provide 
04-12-00319-CV

- 5 -

the defendant with an expert report within 120 days after filing the petition. TEX. CIV. PRAC. &

REM. CODE § 74.351(a). Section 74.351(r)(6) defines “expert report” as a written report by an 

expert that provides a fair summary of the expert’s opinions as of the date of the report regarding 

(1) applicable standards of care, (2) the manner in which the care rendered by the physician or 

health care provider failed to meet the standards, and (3) the causal relationship between that 

failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). 

A report need not marshal all the plaintiff’s proof, but it must include the expert’s opinion on 

each of the elements identified in section 74.351(r)(6). Palacios, 46 S.W.3d at 878–79 (citing 

Hart v. Wright, 16 S.W.3d 872, 877 (Tex. App.—Fort Worth 2000, pet. denied)).

To constitute a good-faith effort to provide a fair summary of an expert’s opinions, an 

expert report must discuss the standard of care, breach, and causation with sufficient specificity 

to (1) inform the defendant of the conduct the plaintiff has called into question, and (2) provide a 

basis for the trial court to conclude that the claims have merit. Palacios, 46 S.W.3d at 879. 

“While a ‘fair summary’ is something less than a full statement of the applicable standard of care 

and how it was breached, even a fair summary must set out what care was expected, but not 

given.” Id. at 880. A report with mere conclusions as to the standards of care, breach, and 

causation does not represent a good-faith effort to provide a fair summary and is thus deficient 

for failing to comply with the statutory requirements. See id. at 879. To go beyond mere 

conclusions, an expert must explain the basis of his statements and link his conclusions to the 

facts. Bowie, 79 S.W.3d at 52. 

A. Dr. Tan

Peterson argues Dr. Tan’s report fails to “provide a fair summary of Dr. Tan’s opinions 

of the standards of care, failure to meet the standards, and the causal relationship.” 
04-12-00319-CV

- 6 -

In his report, Dr. Tan opined on the standard of care a hospital owes an elderly patient 

after the administration of “powerful medications” such as morphine and Ativan. He describes 

both medications as drugs known to cause falls in the elderly stating, “drugs like Morphine and 

Ativan in combination given to elderly patients can result in falls, through mechanisms such as a 

drop in blood pressure or clouding of their mental abilities.” He further explained the standard 

of care in the administration of such “fall inducing medication” requires additional monitoring to 

prevent falls. Dr. Tan also opined Peterson did not meet that standard of care by stating:

[Morphine and Ativan] can be given in carefully selected patients, but, given the 

potential frailties of elderly patients such as Mr. Mayhew, the standard of care 

when administering such drugs to an elderly patient like Mr. Mayhew requires 

additional monitoring by hospital staff, e.g. a nurse or sitter. There was no 

evidence of this in this case. There was no documentation of the need for 

additional monitoring by either the physician or nurse. In fact, the patient was left 

alone after these medications were given.

Dr. Tan also opined on the causal relationship between the failure to provide additional 

monitoring and the resulting fall that ultimately led to Mayhew’s death by stating, “[a]s a 

deviation from the standard of care, there is evidence to suggest the inopportune death of Mr. 

Mayhew was the result of not providing a secure and safe environment for him . . . .” He also 

stated, “[s]imple monitoring would have allowed facility staff to intervene and prevent Mr. 

Mayhew’s fall that lead to his untimely death.”

Dr. Tan’s summary set out what care was expected, but not given. See Palacios, 46 

S.W.3d at 880. To represent a good-faith effort to provide a fair summary of his opinions Dr. 

Tan was not required to marshal all of O’Connell’s proof, but only needed to include his opinion 

on each element—standard of care, breach, and causation. See id. at 878–79. After reviewing 

Dr. Tan’s report, we conclude it met the requirements of making a good-faith effort to provide a 

fair summary under Palacios because it informed Peterson of the specific conduct O’Connell has 
04-12-00319-CV

- 7 -

called into question and provided a basis for the trial court to conclude that her claims have 

merit. See id. at 879.

B. Alexis Williams, R.N.

Next, Peterson argues the trial court abused its discretion in denying Peterson’s motion to 

dismiss because Williams’s report was insufficient as a matter of law. Peterson contends 

Williams’s report was not a “fair summary” because her report “never identifies the documents 

reviewed which she claims are deficient.”

Peterson’s argument is that Williams was required to detail inside of her report what 

documents she reviewed in order to provide a “fair summary,” because her report cannot be 

“fair” to them if they do not know what Williams reviewed. In its motion to dismiss, Peterson 

asserted it was necessary that the documents Williams reviewed be identified due to what 

Peterson argued were “complaints of inadequacies of documents or records” in her report. In 

support of its argument, Peterson pointed to the language in Williams’s report such as, “[f]ailure 

to accurately or intelligently report and/or document a client’s status . . .” and, “I did not find a 

fall assessment . . .” as language indicating inadequacies of documents; therefore, requiring her 

to identify the specific documents she reviewed.

In her report, Williams stated Mayhew represented a “very high fall risk,” particularly 

after the administration of Ativan, which she stated has “potential side effects of dizziness, 

drowsiness, disorientation, and unsteadiness.” Williams opined on the standard of care required 

when treating an elderly patient with such medications. Williams’s report, in relevant part, 

stated as follows: 

[W]hen he was found to have suffered his second fall—there is no documentation 

to support the care that was given to this patient. Failure to accurately or 

intelligently report and/or document a client’s status including signs, symptoms, 

or responses and the nursing care delivered is a breach of the standard of care.
04-12-00319-CV

- 8 -

. . .

Further, when reviewing the documentation, I did not find a fall assessment or a 

nursing assessment of this patient after they arrived on the floor. An assessment 

at this time would likely have included the administration of Ativan, which would 

most likely not have been part of the initial fall assessment. The subsequent 

failure to conduct a second fall assessment upon his arrival on the floor—an 

assessment that would have taken into account the effects of his medication—was 

also a breach of the standard of care.

Williams further stated that after the administration of Ativan, “[n]o documentation in the 

nursing record suggests that any interventions were taken to prevent injury by a repeat fall.” 

Williams’s comments on the lack of documents providing a fall assessment go towards her 

opinion that Peterson’s failure to conduct/document fall assessments to prevent falls was a 

breach of the standard of care. She demonstrates this in her report by stating Peterson’s 

“[f]ailure to accurately or intelligently report . . . a client’s status . . . is a breach of the standard 

of care.”

We find no statutes or case law to support Peterson’s argument. Section 74.351(r)(6) 

only requires that an expert provide a “fair summary of the expert’s opinions . . . 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” TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). Nothing 

in section 74.351 requires the expert to detail in their report what documents they reviewed in 

order to provide a fair summary. In determining the adequacy of a report, the trial court must 

look only to the four corners of the report. Bowie, 79 S.W.3d at 53. The sufficiency of a report 

is determined only by examining the report itself. Quinones, M.D. v. Pin, 298 S.W.3d 806, 810 

(Tex. App.—Dallas 2009, no pet.). In Findley-Smith, M.D. v. Smith, the defendants argued the 

good-faith requirement in Palacios that an expert report provide a basis for the trial court to 
04-12-00319-CV

- 9 -

conclude the claims have merit required the expert to review all medical records relating to the 

case. Findley-Smith, M.D. v. Smith, No. 01-07-00360-CV, 2008 WL 525813, at *4 (Tex. App.—

Houston [1st Dist.] Feb. 28, 2008, pet. denied) (mem. op.). The appellate court disagreed, 

holding the trial court need only look at the expert report itself in making a determination of 

whether the claims have merit, not at whether the expert has or has not reviewed all relevant 

documents. Id. “Otherwise, the trial court would be put in the position of deciding the merits of 

the case in summary judgment fashion, which Palacios prohibits.” Id. (citing Am. Transitional 

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)). An attack of the data 

underlying an expert’s opinion is beyond the scope of a section 74.351 challenge. Quinones, 298 

S.W.3d at 813. Accordingly, we find no support for Peterson’s argument that Williams’s 

complaints of “inadequacies” require her to identify in her report the underlying data she 

reviewed.

CONCLUSION

We conclude the trial court did not abuse its discretion denying Peterson’s motion to 

dismiss.1

 We affirm the trial court’s judgment.

Sandee Bryan Marion, Justice

 1 We decline to address the issue regarding the motion for a thirty-day extension as it is not dispositive to this 

appeal. TEX. R. APP. P. 47.1.