Opinion issued October 8, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-01108-CV

———————————

TELICIA OWENS, Appellant

V.

KRISTA G. HANDYSIDE, M.D., SAMUEL J. PRATER, M.D., KENNETH 

A. TOTZ, D.O., FACEP, AND MEMORIAL HERMANN HOSPITAL 

SYSTEM D/B/A MEMORIAL HERMANN – TEXAS MEDICAL CENTER, 

Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Case No. 2012-07534

OPINION ON REHEARING
2

Appellees, Krista G. Handyside, M.D., Samuel J. Prater, M.D., Kenneth A. 

Totz, D.O., FACEP,1 and Memorial Hermann Hospital System, doing business as 

Memorial Hermann – Texas Medical Center (“Memorial Hermann”),2 have filed 

motions for rehearing and motions for en banc reconsideration of our April 23, 

2015 opinion and judgment. We deny their motions for rehearing, withdraw our 

opinion and judgment of April 23, 2015, and issue the following opinion and a new 

judgment in their stead. Because we issue a new opinion in connection with the 

denial of rehearing, appellees’ motions for en banc reconsideration of our April 23, 

2015 opinion are rendered moot. See, e.g., Brookshire Bros., Inc. v. Smith, 176 

S.W.3d 30, 41 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

Appellant, Telicia Owens, challenges the trial court’s dismissal of her health 

care liability claims3 against Drs. Handyside, Prater, and Totz and Memorial 

Hermann. In three issues, Owens contends that the trial court erred in dismissing 

her claims on the grounds that she failed to timely serve her medical expert report 

 1 Owens sued “Kenneth A. Totz, M.D.” We note that, in his answer, Dr. Totz 

identifies himself as “Kenneth A. Totz, D.O., FACEP,” as does the trial court in its 

dismissal order. Our style of the case is in accord with the trial court’s dismissal 

order. See Strobel v. Marlow, 341 S.W.3d 470, 471 n.1 (Tex. App.—Dallas 2011, 

no pet.).

2 Owens sued “Memorial Hermann Healthcare System d/b/a Memorial Hermann 

Hospital.” In its answer, Memorial Hermann stated that it was incorrectly named. 

In its dismissal order, the trial court identifies Memorial Hermann as “Memorial 

Hermann Hospital System d/b/a Memorial Hermann – Texas Medical Center.” 

Our style of the case is in accord with the trial court’s dismissal order. See id.

3 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13) (Vernon Supp. 2014).
3

on appellees, her medical expert is not qualified to opine on the standard of care of 

hospital emergency room doctors, and her report insufficiently addresses the issues 

of standard of care and causation.4

We reverse and remand.

Background

In her petition, Owens alleges that on February 6, 2010, she went to the 

“Emergency Department at Memorial Hermann,” complaining of a “severe 

headache.” She was diagnosed with a “migraine, tension headache, and headache 

associated with sinuses,” but “[n]o diagnostic testing was done to rule out any 

internal problems.” On February 10, 2010, Owens “returned to the Emergency 

Department at Memorial Hermann,” complaining of the “same persisting 

symptoms.” Dr. Handyside diagnosed her as suffering from a “headache and 

sinitus.” Again, no diagnostic testing was performed. On February 21, 2010, 

Owens “returned again to the [E]mergency [D]epartment at Memorial Hermann,” 

complaining of a “headache and blurry vision.” Drs. Prater and Totz treated her, 

 4 See id. § 74.351(a) (Vernon Supp. 2014) (governing medical expert reports). In 

2013, the legislature amended section 74.351 of the Texas Medical Liability Act. 

See Act of May 26, 2013, 83d Leg., R.S., ch. 870, § 2, 2013 Tex. Sess. Law Serv.

2220, 2220. The amended provision applies to all suits filed after September 1, 

2013. Because Owens filed her original petition in 2010, we apply the former 

version of section 74.351 to her claims. See Act of May 18, 2005, 79th Leg., R.S., 

ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (amended 2013) (current version at 

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351).
4

and they diagnosed her as suffering from a “headache.” No diagnostic testing was 

performed.

Subsequently, on February 24, 2010, Owens went to “Methodist Hospital

[(“Methodist”)] for [an] assessment of the same symptoms that she complained of 

at Memorial Hermann.” Doctors administered a “CT scan,” which showed that she 

was suffering from a “head bleed.” Methodist admitted Owens into its “Intensive 

Care Unit,” and it discharged her on March 3, 2010.

On April 22, 2010, Owens went to “Ben Taub General Hospital [(“Ben 

Taub”),] complaining of sudden blindness, which resulted in [the] placement of a 

lumbar shunt.” On May 14, 2010, she returned to Ben Taub, “complaining of 

sutures coming out, shunt leak[age], blurred vision, and [a] headache.” Ben Taub 

admitted Owens for evaluation and subsequently discharged her. On May 17, 

2010, Owens again returned to Ben Taub, “complaining of [a] headache, chest 

pain, and neck stiffness.” Her shunt was infected, and it was removed. Owens was 

“found to have been infected with MRSA—Methicillin Resistant Staphyloccus 

Aureus.”

Owens further alleges that she sustained “permanent damage to her optic 

nerve and is completely blind in both of her eyes. She has continuous subsequent 

damage and pain.” However, Owens does not specify in her petition the medical 

cause or reason for her loss of vision and residual “damage and pain.”
5

Owens brings health care liability claims against Drs. Handyside, Prater, and 

Totz for negligence and gross negligence, specifically alleging that they:

• Failed to obtain an accurate assessment of Owens;

• Failed to notice signs and symptoms of “Cerebral Venous Sinus 

Thrombosis” (“CVST”);

• Failed to accurately and timely diagnose Owens;

• Failed to consider possible explanations and respond to severe 

headaches and blurry vision;

• Failed to order appropriate radiological studies;

• Failed to make a medical diagnosis based on Owens’s clinical 

condition;

• Failed to consult with a neurologist or other specialist while Owens 

was in the emergency department;

• Failed to develop and carry out a proper treatment plan for Owens;

• Failed to admit Owens to the “Neurological ICU”;

• Failed to order thrombolytic medication necessary to attempt to 

dissolve the thrombosis;

• Failed to adhere to “Federal Laws regarding EMTALA regarding 

emergently treating a patient regardless of [her] inability to pay”;

• Failed to order appropriate diagnostic tests and treatments even once 

CVST was suspected as a possible cause of Owens’s symptoms; and

• Negligently managed a patient with CVST.
6

Owens likewise brings direct-liability claims for negligence and gross 

negligence against Memorial Hermann, specifically alleging that it:

• Failed to select and retain only competent physicians and staff;

• Failed to properly supervise the health care providers who treated Owens;

• Failed to enforce or have in place policies, protocols, by-laws, rules and 

regulations regarding proper diagnosis and treatment of Owens’s medical 

condition;

• Failed to enforce or have in place policies and protocols, with regard to 

consulting specialty physicians;

• Failed to have a medical director or chief of staff in place to properly 

supervise physicians and staff; and

• Failed to abide by recommendations and requirements of healthcare 

certifying organizations.

“As a result of the above-noted acts of negligence,” Owens asserts that 

appellees “directly and proximately caused” her “injuries, losses, and damages.” 

She also alleges that Memorial Hermann is vicariously liable for the negligent 

“acts and/or omissions” of its staff, including, among others, Drs. Handyside, 

Prater, and Totz.

To support her claims, Owens, on or about May 29, 2012, filed and served 

upon all appellees a medical expert report authored by Brian C. Richardson, M.D. 

Appellees objected to Dr. Richardson’s report on several grounds, including that 

Owens did not timely serve it; it failed to sufficiently address the elements of 
7

standard of care, breach of the standard, and causation; and Richardson, a 

neurologist, is not qualified to opine on the standard of care of hospital emergency 

room doctors or causation.

Specifically, Dr. Totz filed his objection to the sufficiency of Dr. 

Richardson’s report on June 19, 2012, stating:

In support of [Owens’s] health care liability claim, and pursuant to 

Texas Civil Practice & Remedies Code § 74.351(a), [Owens] offered 

the report of Dr. Richardson. . . .

In accordance with Texas Civil Practice and Remedies Code 

§ 74.351(a), Dr. Totz’s Objection is filed within twenty-one (21) days 

of the date of service of Dr. Richardson’s expert report.

(Emphasis added.) Totz also attached to his objection, as “Exhibit A,”

Richardson’s report, as well as its accompanying transmittal letter, which were

both sent by Owens to all appellees on May 29, 2012.

Owens, on July 17, 2012, filed her response to appellees’ objections,

asserting that she “served [Dr. Richardson’s] expert report upon all 

Defendants . . . on May 29, 2012.” Attached to Owens’s response were United 

States Postal Service (“USPS”) certified mail receipts and “green cards,” which 

evidence service of Dr. Richardson’s expert report on appellees by certified mail. 

However, the signature line on the green card for Dr. Totz does not contain a 

signature, and both the USPS certified mail receipt and the green card pertaining to 

him contain the wrong zip code for his personal residence.
8

On August 15, 2012, Dr. Totz filed a “Supplemental Objection” to Dr. 

Richardson’s expert report, moving to dismiss Owens’s claims against him for 

failure to timely serve him with the report. Totz attached to his supplemental 

objection his affidavit and the affidavit of his attorney, Charles B. Holm. Totz 

testified that he had “never received a copy of Dr. Richardson’s Expert Report via

certified mail, return receipt requested at [his] personal residence,” he “never 

executed” the specific green card attached to Owens’s response, and he was not 

“served” in person with the expert report. Although Holm testified that he had 

“never received a copy of Dr. Richardson’s Expert Report from [Owens] or her 

attorney on or before June 6, 2012,”5 and neither had anyone at his law firm, he 

conceded that he had “obtained a copy of Dr. Richardson’s Expert Report through 

[unspecified] alternative means.” Owens did not file a response to Totz’s 

supplemental objection.

After a hearing, the trial court sustained Dr. Totz’s specific objection that

Owens had failed to timely serve him with Dr. Richardson’s expert report, and it 

dismissed Owens’s claims against him. It also sustained the objections of 

Memorial Hermann and Drs. Handyside and Prater as to the sufficiency of 

 5 Owens was required to serve her expert report by June 6, 2012—120 days after the 

date she filed her original petition. See Act of May 18, 2005, 79th Leg., R.S., ch. 

635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (amended 2013) (current version at 

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a)).
9

Richardson’s expert report, but it allowed Owens thirty days to file and serve upon 

them an amended report. 

Owens then served Dr. Richardson’s amended medical expert report on 

Memorial Hermann and Drs. Handyside and Prater. In Richardson’s amended 

report, he notes that he is a “physician in private practice,” is “licensed to practice 

medicine in the State of California,” and is “board certified in adult neurology and 

vascular neurology by the American Board of Psychiatry and Neurology.” 

Richardson further states:

I have knowledge of [the] accepted and established standards of 

medical care for the patient[’]s diagnosis that is involved in the claim. 

I obtained this knowledge via my residency and fellowship training as 

well as via experience[] gained in the practice of neurology for over 

19 years.

. . . .

As a neurologist board certified in general adult neurology and 

vascular neurology[,] I have seen, diagnosed and managed many 

patients with dural sinus thrombosis. I have also seen, diagnosed and 

managed many patients with idiopathic intracranial hypertension 

(formerly referred to as pseudotumor cerebri or benign intracranial 

hypertension). As such[,] I am familiar with the standard of care for 

the diagnosis, care and treatment of both dural sinus thrombosis and 

idiopathic intracranial hypertension.

Richardson also explains that he reviewed Owens’s medical records prior to 

forming his opinions. 

Dr. Richardson notes that the applicable standard of care for Dr. Handyside, 

concerning a patient complaining of,
10

a severe headache of one week duration . . . without a prior history of 

recurrent headaches would include cerebral imaging[,] such as [a] CT 

or preferably [a] brain MRI. [A] [l]umbar puncture should have been 

performed as well. A neurology consultation should have been 

obtained. It should have been clear to the examining physician that 

the patient had a potentially serious neurological condition. The 

differential diagnosis should have included dural sinus thrombosis. 

The standard of care would also have included admission or urgent 

appropriate outpatient follow-up . . . .

In regard to the applicable standard of care for Dr. Prater, Richardson states the 

following:

[Owens was diagnosed with] rule out cavernous sinus thrombosis, rule 

out meningoenchephalitis. . . . These are two very serious diagnoses 

that should have prompted admission to the hospital and [an] urgent 

neurological consultation. At the very least[,] neurodiagnostic 

studies[,] such as [a] lumbar puncture, [a] CT . . . or [a] brain MRI[,] 

should have been performed. The standard of care for evaluating 

patients with possible meningitis is to perform a lumbar puncture right 

away. Neurological consultation and neuroimaging[,] such as [a] 

CT . . . or [a] brain MRI[,] should be done promptly when cavernous 

sinus thrombosis is being entertained as a diagnosis. Patients should 

be admitted to the hospital[,] rather than discharged when lifethreatening diagnoses such as these are considered. . . . As stated 

above, cerebral imagining, [such as a] CT or preferably [a] brain 

MRI[,] should have been done. A lumbar puncture should have been 

performed given the diagnoses of the examining physician[].

Finally, regarding the applicable standard of care for Memorial Hermann, 

Richardson notes that it “should have had protocols for evaluation, consultation, 

admission and follow-up that resulted in adequate care of patients with conditions 

such as dural sinus thrombosis and idiopathic intracranial hypertension. The 
11

failure to have in place and abide by such protocols was a bre[a]ch in the standard 

of care.”

In regard to causation, Dr. Richardson opines:

If Dr. . . . Handyside had performed cerebral imaging[,] such as [a] 

CT or preferably [an] MRI, performed [a] lumbar puncture or 

obtained [a] neurological consultation[,] it is medically probable 

that . . . Owens would have had her condition diagnosed and treated in 

a timelier manner. Early treatment of dural sinus thrombosis reduces 

the likelihood of complications[,] such as idiopathic intracranial 

hypertension. Thus[,] her vision would have most likely been spared 

and she would not have lost vision in the right and left eyes. Severe 

loss of vision is a preventable complication of dural sinus thrombosis.

If Dr[.] . . . Prater performed [a] lumbar puncture, ordered cerebral 

imaging[,] such as [a] head CT and preferably [an] MRI, admitted 

[Owens to the hospital] and/or obtained [a] neurological 

consultation, . . . Owens would have likely had a more timely 

diagnosis, earlier treatment and her vision would medically probably 

have been saved. If . . . Prater had not prescribed dexamethazone 

for . . . Owens[,] it is medically probable that her condition would not

have been exacerbated. It is possible she would not have progressed 

to . . . have [a] loss of vision.

. . . .

Memorial Herman[n] . . . failed to have and/or implement adequate 

protocols for evaluation, consultation, admission and follow-up that 

resulted in [in]adequate care of this patient with dural sinus 

thrombosis and idiopathic intracranial hypertension. The failure to 

have in place and abide by such protocols was a bre[a]ch in the 

standard of care that was a proximate cause of . . . Owens 

subsequently developing blindness in the right and left eyes.

(Footnote omitted.) Richardson further opines:

. . . Owens developed dural sinus thrombosis . . . . This is an 

uncommon, but well known condition that is treatable with 
12

anticoagulant medications. There was a significant delay in the 

diagnosis of this condition. This delay resulted in the development of 

a complication, severe vision loss due to idiopathic intracranial 

hypertension. Severe vision loss due to intracranial complication can 

generally be easily treated with medication if it is diagnosed early. In 

the case of failure of medications, serial lumbar punctures can be done 

in some cases. Surgical procedures[,] such as lumboperitoneal shunt 

placement[,] are effective second line treatments. Optic nerve 

fenestration is an effective third level of treatment . . . .

And he explains: “Untreated dural sinus thrombosis is well known to potentially 

cause idiopathic intracranial hypertension. Idiopathic intracranial hypertension 

may progress to blindness if untreated. It is medically probable that early 

diagnosis would have prevented [Owens’s] later development of vision loss.” 

(Footnote omitted.)

Memorial Hermann and Drs. Handyside and Prater objected to Dr. 

Richardson’s amended medical expert report and moved to dismiss Owens’s 

claims against them on the grounds that Richardson is not qualified to opine on the 

standard of care for hospital emergency room doctors and his report insufficiently 

addresses the issues of standard of care and causation. Drs. Handyside and Prater 

also reasserted their untimeliness objections. Without stating its reasons, the trial

court granted the motions of Memorial Hermann and Drs. Handyside and Prater

and dismissed Owens’s health care liability claims against them.
13

Standard of Review

We review a trial court’s decision on a motion to dismiss a health care 

liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., 

Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Gray v. CHCA Bayshore L.P., 

189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A trial court 

abuses its discretion if it acts in an arbitrary or unreasonable manner without 

reference to guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 

(Tex. 2010). When reviewing matters committed to a trial court’s discretion, we 

may not substitute our own judgment for that of the trial court. Bowie Mem’l 

Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does not abuse its 

discretion merely because it decides a discretionary matter differently than an 

appellate court would in a similar circumstance. Harris Cty. Hosp. Dist. v. 

Garrett, 232 S.W.3d 170, 176 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

We review questions of law de novo. In re Labatt Food Serv., L.P., 279 

S.W.3d 640, 643 (Tex. 2009); CHCA W. Hous., L.P. v. Priester, 324 S.W.3d 835, 

837 (Tex. App.—Houston [14th Dist.] 2010, no pet.). And to the extent an issue 

involves statutory interpretation, we apply a de novo standard of review. See 

Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011); Priester, 324 S.W.3d at 

837. “[W]hether proper service [under Texas Civil Practice and Remedies Code 

section 74.351] has been made is a question of law . . . .” Nexion Health at 
14

Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex. App.—Houston [14th Dist.] 

2011, no pet.); see also Univ. of Tex. Health Sci. Ctr. of Hous. v. Gutierrez, 237 

S.W.3d 869, 871 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (noting

whether defendant properly served constituted “a purely legal issue”).

Timeliness of Expert Report

In her first issue, Owens argues that the trial court erred in dismissing her 

claims against Dr. Totz because he admitted in his objection to Dr. Richardson’s 

expert report, filed on June 19, 2012, that he had been timely served with the report 

and he waived his untimeliness objection by waiting “until August 15, 2012, more 

than two months after the expiration of the 120-day deadline,” to raise the issue.6

 

Totz argues that Owens “failed to preserve her argument regarding [his] 

admission” of timely service of Richardson’s expert report because she did not 

“ever raise the argument” in the trial court. Totz also argues that Owens did not 

preserve her “waiver” argument because “[i]n her [appellate] [b]rief, for the very 

first time, [Owens] takes issue with the . . . fact that he did not file his 

 6 In her brief, Owens also asserts that she timely served Dr. Richardson’s report on 

Memorial Hermann and Drs. Handyside and Prater. In response, Drs. Handyside 

and Prater state that they “no longer object to the timeliness of the expert report of 

Dr. Richardson.” Similarly, in its brief, Memorial Hermann states: “On or about 

May 30, 2012, [Owens] timely served on [Memorial Hermann] an initial expert 

report of Brian C. Richardson, M.D.” Accordingly, we do not address this portion 

of Owens’s first issue.
15

[s]upplemental [o]bjection[] until more than two months after the expiration of the 

120-day deadline.” (Emphasis omitted.)

The former version of Texas Civil Practice and Remedies Code section 

74.351, in effect at the time this suit was filed, provided that a health care liability 

claimant shall, “not later than the 120th day after the date the original petition [is] 

filed, serve on each party or the party’s attorney one or more expert reports.”7

 See

Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 

1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a) (Vernon Supp. 2014)). It further provided that if an expert report is 

not timely served, the affected health care provider may move to dismiss a claim 

asserted against him, and the court must dismiss the claim with prejudice. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b); Heriberto Sedeno, P.A. v. Mijares, 

333 S.W.3d 815, 818, 822–23 (Tex. App.—Houston [1st Dist.] 2010, no pet.). A 

health care provider may waive his right to complain about the adequacy of an 

expert report by failing to challenge the report’s adequacy within twenty-one days 

of service of the report. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 

2005 Tex. Gen. Laws 1590, 1590 (amended 2013) (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a)); Ogletree v. Matthews, 262 S.W.3d 316, 

 7 The legislature’s 2013 amendment to section 74.351(a) requires each health care 

liability claimant to serve an expert report “not later than the 120th day after each 

defendant’s original answer is filed.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a) (emphasis added).
16

321–22 (Tex. 2007). However, there is no deadline to file a motion to dismiss for 

failure to timely serve a chapter 74 expert report. Jernigan v. Langley, 111 S.W.3d 

153, 156 (Tex. 2003); Heriberto, 333 S.W.3d at 823–24. In other words, a health 

care provider does not waive his right to dismissal of an untimely served expert 

report by waiting to file his motion to dismiss. See Jernigan, 111 S.W.3d at 156–

57 (waiting more than 600 days to move for dismissal). Accordingly, even 

assuming Owens preserved her “waiver” argument, we hold that Dr. Totz did not 

waive his right to complain about the untimeliness of service of Dr. Richardson’s 

report by waiting until August 15, 2012 to file his supplemental objection and 

motion to dismiss.

Regarding Dr. Totz’s argument that Owens “failed to preserve her argument 

regarding [his] admission” that he had been timely served with Dr. Richardson’s 

expert report, we note that in reviewing a trial court’s judgment, we may only 

consider what was before the trial court at the time it made its decision. San 

Jacinto Methodist Hosp. v. Carr, No. 01-07-00655-CV, 2008 WL 2186473, at *3 

(Tex. App.—Houston [1st Dist.] May 22, 2008, no pet.) (mem. op.); Hansen v. 

Starr, 123 S.W.3d 13, 18 (Tex. App.—Dallas 2003, pet. denied); see also TEX. R.

APP. P. 33.1(a). As Totz notes in his brief, Owens did not respond to his 

supplemental objection, filed on August 15, 2012, in which he raised the issue of 
17

the untimely service of Richardson’s report.8 And, thus, according to Totz, Owens 

never argued to the trial court that he had admitted to having been timely served 

with Richardson’s report. However, it was not necessary for Owens to have made 

this assertion in a response to Totz’s August 15, 2012 supplemental objection.

Dr. Totz’s attorney, Holm, in his affidavit attached to Totz’s supplemental 

objection, conceded that he had “obtained a copy of Dr. Richardson’s Expert 

Report.” And his affidavit testimony does not contain an affirmative statement that 

Totz was not timely served with the report. Rather, Holm merely states that he

“never received a copy of Dr. Richardson’s Expert Report from [Owens] or her 

attorney on or before June 6, 2012” and neither had anyone at his law firm. 

(Emphasis added.)

Likewise, Dr. Totz, in his affidavit, attached to his supplemental objection,

does not affirmatively state that was not served with Dr. Richardson’s report. 

Rather, he states that he “never received a copy of Dr. Richardson’s Expert Report 

via certified mail, return receipt requested at [his] personal residence,” did not 

“execute[]” the specific green card attached to Owens’s response to his June 19, 

2012 objection, and was not “served” in person with the report. (Emphasis added.)

 8 Dr. Totz states in his brief: “[A]t no point . . . in the interim between the August 

15, 2012 filing of [his] [s]upplemental [o]bjection and the occurrence of the 

August 24, 2012 oral hearing regarding [his] objection and motion to dismiss, did 

[Owens] file any sort of argument, issue, objection, or any other motion in 

response to the arguments or evidence presented in [his] [s]upplemental 

[o]bjection.”
18

Importantly, neither Dr. Totz nor his attorney, in their affidavit testimony, 

denies having been timely served with a copy of Dr. Richardson’s expert report. 

See TEX. R. CIV. P. 21a (listing methods of service). And the trial court, at the time 

it made its decision to dismiss Owens’s claims against Totz, had before it Holm’s 

testimony that he had “obtained a copy of Dr. Richardson’s Expert Report.” See 

Strobel v. Marlow, 341 S.W.3d 470, 476 (Tex. App.—Dallas 2011, no pet.) 

(“Receipt is an element of service.”). Accordingly, we hold that Owens did not fail 

to preserve her argument that Totz admitted to having been timely served with a 

copy of Richardson’s expert report.9

 See Hansen, 123 S.W.3d at 18 (explaining 

we “consider what was before the trial court at the time it made its decision”).

In regard to the merits of Owens’s first issue, Dr. Totz argues that the trial 

court did not err in dismissing Owens’s claims against him because, under a proper 

 9 Dr. Totz also argues that Owens “waived her appellate issues” as to him because 

she did not reference, in her notice of appeal, the September 6, 2012 order 

granting Totz’s motion to dismiss or serve Totz with certain documents filed in 

her appeal. As explained in our April 29, 2014 order, although Owens did not list 

the trial court’s September 6, 2012 order granting Totz’s motion to dismiss in her 

notice of appeal, “the rules do not require [her] to list in the notice of appeal every 

interlocutory ruling that [she] may wish to appeal.” See Ostrovitz & Gwinn, LLC 

v. First Specialty Ins. Co., 393 S.W.3d 379, 386 (Tex. App.—Dallas 2012, no 

pet.). Further, we note that “our decisions construing the appellate rules have not 

favored disposing of appeals on harmless procedural defects.” See Sweed v. Nye, 

323 S.W.3d 873, 875 (Tex. 2010); see also Higgins v. Randall Cty. Sheriff’s 

Office, 257 S.W.3d 684, 688 (Tex. 2008) (“[W]e have long interpreted the Rules 

of Appellate Procedure liberally in favor of preserving appellate rights.”); Tex. S. 

Univ. v. Araserve Campus Dining Servs. of Tex., Inc., 981 S.W.2d 929, 935 n.12 

(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (docketing statement does not 

limit or waive party’s appellate arguments). 
19

construction of Civil Practice and Remedies Code section 74.351, she did not 

timely serve him with Dr. Richardson’s expert report by certified mail “at [his] 

personal residence” or in person, even though he was in possession of the report, 

timely objected to its sufficiency, and attached to his June 19, 2012 objection, a 

copy of the report and its transmittal letter sent by Owens on May 29, 2012. Cf.

TEX. R. CIV. P. 21a (listing methods of service); Gutierrez, 237 S.W.3d at 872 

(same). However, the Texas Supreme Court has concluded otherwise on similar 

facts. See Zanchi v. Lane, 408 S.W.3d 373 (Tex. 2013). In Zanchi, the court 

specifically held: 

[W]e conclude, that, under section 74.351(a) of the TMLA, a 

physician or health care provider against whom [a health care liability 

claim] is asserted is a “party” who may be served with an expert 

report regardless of whether he has been served with process. We 

further hold that an expert report need not be “served” in compliance 

with the formal requirements of [Texas Rule of Civil Procedure] 106 

[governing citation and service of process] that apply specifically to 

service of citation. 

Id. at 380–81. 

Here, the record reveals that Owens filed her petition on February 7, 2012, 

naming Dr. Totz as a defendant. She then served Dr. Richardson’s initial expert 

report on all appellees, including Totz, on or about May 29, 2012. See id. at 380 

(report properly served where plaintiff “sent the expert report on the statutory 

deadline”); see also Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. 

Gen. Laws 1590, 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM.
20

CODE ANN. § 74.351(a)). Although the USPS certified mail receipt and green card 

attached to Owens’s response show the wrong zip code for Totz’s personal 

residence and he testified that he did not “receive[]” the expert report by certified 

mail “at [his] personal residence” and he was not “served” with the expert report in 

person, Totz and his attorney did timely obtain a copy of the report. See Zanchi, 

408 S.W.3d at 380 (report properly served where defendant health care provider 

“actually received the expert report”); see also Strobel, 341 S.W.3d at 476 

(“Receipt is an element of service.”). And neither Totz nor his attorney ever 

affirmatively denied timely being served with Richardson’s report. In fact, the 

report and its transmittal letter sent by Owens to all appellees on May 29, 2012 

were attached to Totz’s objection timely, which he filed on June 19, 2012.10 See

Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 

1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a)). Accordingly, we hold that the trial court erred in granting Totz’s 

 10 And Dr. Totz stated in his objection:

In support of [Owens’s] health care liability claim, and pursuant to 

Texas Civil Practice & Remedies Code § 74.351(a), [Owens] offered 

the report of Dr. Richardson. . . .

In accordance with Texas Civil Practice and Remedies Code 

§ 74.351(a), Dr. Totz’s Objection is filed within twenty-one (21) 

days of the date of service of Dr. Richardson’s expert report.

(Emphasis added.)
21

motion to dismiss Owens’s claims against him on the ground that she failed to 

timely serve him with Richardson’s expert report.11

 11 This holding does not conflict with our prior decision in University of Texas 

Health Science Center of Houston v. Gutierrez, 237 S.W.3d 869 (Tex. App.—

Houston [1st Dist.] 2007, pet denied). In Gutierrez, the issue was whether the 

University of Texas Health Science Center at Houston (“UTHSCH”) was properly 

served with an expert report in accordance with Texas Civil Practice and 

Remedies Code section 74.351(a). 237 S.W.3d at 871. It was “undisputed” that

the plaintiffs “never served UTHSCH” with their expert report and “did not send 

the report at all.” Id. at 870, 873. Instead, UTHSCH received a courtesy copy of 

the report from another party prior to being named as a defendant in the plaintiffs’ 

lawsuit. Id. at 870. We concluded that section 74.351(a) requires a plaintiff to 

serve an expert report on a defendant health care provider in a manner which 

complies with Texas Rule of Civil Procedure 21a. Id. at 872–73. And because the 

plaintiffs in Gutierrez did not serve the report “at all” on UTHSCH, we held that 

the trial court was required to dismiss their claims. Id. at 873–74. 

Here, in contrast, the evidence is not “undisputed” that Owens wholly failed to

serve Dr. Totz with Dr. Richardson’s expert report or that Owens failed to “use 

any of the methods authorized by rule 21a to serve [her] expert report on [Totz] 

before the expiration of the statutory deadline.” Cf. id. at 870, 872. Further, 

unlike the defendant health care provider in Gutierrez, Totz was actually served 

with Owens’s expert report after he became a “party” to the lawsuit. Cf. id. at 

870; see also Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. 

Laws 1590, 1590 (amended 2013) (current version at TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351(a)) (requiring expert report to be served on “party”); Zanchi 

v. Lane, 408 S.W.3d 373, 377 (Tex. 2013) (“[T]he term ‘party’ means one named 

in a lawsuit . . . .”).

The record reveals that Owens filed her petition, naming Dr. Totz as a defendant, 

on February 7, 2012. She then served her expert report on all appellees, including 

Totz, on or about May 29, 2012. Totz timely filed his objection to the adequacy of 

Owens’s report on June 19, 2012—twenty-one days after it had been served upon 

him. In his objection Totz stated:

In support of [Owens’s] health care liability claim, and pursuant to 

Texas Civil Practice & Remedies Code § 74.351(a), [Owens] offered 

the report of Dr. Richardson. . . .

In accordance with Texas Civil Practice and Remedies Code 

§ 74.351(a), Dr. Totz’s Objection is filed within twenty-one (21) 

days of the date of service of Dr. Richardson’s expert report.
22

We sustain Owens’s first issue, in part.

Sufficiency of Expert Report

In her second issue, Owens argues that the trial court erred in dismissing her 

claims against Memorial Hermann and Drs. Handyside and Prater because “Dr. 

Richardson is fully qualified . . . to offer opinions in this case” and he adequately 

addresses the elements of standard of care and causation in his report.12

As noted above, a health care liability claimant must timely provide each 

defendant health care provider with an expert report. See TEX. CIV. PRAC. & REM.

CODE ANN. § 74.351; Gray, 189 S.W.3d at 858. The report must provide a “fair 

summary” of the expert’s opinions as of the date of the report regarding the 

applicable standards of care, the manner in which the care rendered by the health 

care provider failed to meet the standard, and the causal relationship between that 

failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE 

ANN. § 74.351(r)(6).

 

(Emphasis added.) Totz also attached to his objection, as “Exhibit A,” the expert 

report as well as its accompanying transmittal letter, which were both sent by 

Owens to all appellees on May 29, 2012. Notably, neither Totz nor his attorney 

ever affirmatively denied having been timely served with Owens’s expert report.

12 Owens also asserts that Dr. Richardson’s expert report adequately addresses the 

breach of the standard of care. However, neither Memorial Hermann nor Drs. 

Handyside or Prater objected to Richardson’s report on this ground. Further, to 

the extent that Owens asserts that the report is sufficient in regard to Dr. Totz, we 

note that the trial court dismissed Owens’s claims against Totz on the ground that

she had not timely served him with the report. Accordingly, we do not address 

these portions of Owens’s second issue.
23

If a defendant health care provider files a motion to dismiss, challenging the 

adequacy of a claimant’s expert report, a trial court must grant the motion if it 

appears, after a hearing, that the report does not represent an objective good faith 

effort to comply with the definition of an expert report or is not sufficiently 

specific to provide a basis for the trial court to conclude that the claims have merit. 

Id. § 74.351(l); Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex. 2011). In 

setting out the expert’s opinions, the report must provide enough information to 

fulfill two purposes: (1) it must inform the defendant of the specific conduct that 

the plaintiff has called into question, and (2) it must provide a basis for the trial 

court to conclude that the plaintiff’s claims have merit. Scoresby, 346 S.W.3d at 

556.

Dr. Richardson’s Qualifications

Owens first argues that the trial court, to the extent that it granted Drs. 

Handyside’s and Prater’s motions to dismiss her claims on the ground that Dr. 

Richardson is not qualified to address the standard of care, erred because 

“Richardson is more than qualified to offer []his opinion.”13 Owens asserts that it 

does not matter that Richardson is “not an emergency room physician” and he is 

 13 Memorial Hermann did not challenge Dr. Richardson’s qualifications, and Drs. 

Handyside and Prater only assert that Richardson is not qualified to opine on the 

standard of care of hospital emergency room doctors.
24

“more than qualified to testify about dural sinus thrombosis and idiopathic 

intracranial hypertension, the conditions involved in [Owens’s] claim[s].”

In order to qualify as an expert, an individual need not be a specialist in the 

particular area of the profession for which testimony is offered. Rittger v. Danos, 

332 S.W.3d 550, 558 (Tex. App.—Houston [1st Dist.] 2009, no pet.); Keo v. Vu, 

76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). However, 

merely being a doctor is insufficient. See Broders v. Heise, 924 S.W.2d 148, 152 

(Tex. 1996). Instead, “[a] medical [expert] who is not of the same school of 

medicine” must show that “he has practical knowledge of what is usually and 

customarily done by a practitioner under circumstances similar to those 

confronting the defendant.” Marling v. Maillard, 826 S.W.2d 735, 740 (Tex. 

App.—Houston [14th Dist.] 1992, no writ); see also Roberts v. Williamson, 111 

S.W.3d 113, 121 (Tex. 2003) (doctor need not practice in particular field about 

which he opines if he demonstrates knowledge, skill, experience, training, or 

education regarding specific issue before court qualifying him to give opinion on 

issue); Keo, 76 S.W.3d at 732 (“[T]rial court may qualify a medical witness of a 

different specialty to testify . . . .”). Analysis of an expert’s qualifications to opine 

as an expert on the subject matter of the report is limited to the four corners of the 

expert report or accompanying curriculum vitae. See Mem’l Hermann Healthcare 
25

Sys. v. Burrell, 230 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.] 2007, no 

pet.).

In order to opine on the standard of care, a person must (1) be “practicing 

medicine at the time such testimony is given or [have been] practicing medicine at 

the time the claim arose”; (2) have “knowledge of accepted standards of medical 

care for the diagnosis, care, or treatment of the illness, injury, or condition 

involved in the claim”; and (3) be “qualified on the basis of training or experience 

to offer an expert opinion regarding those accepted standards of medical care.” 

TEX. CIV. PRAC. & REM. CODE § 74.401(a) (Vernon 2011); see also id.

§ 74.351(r)(5)(A) (defining “expert,” with respect to person opining as to whether 

doctor departed from accepted standards of medical care, as one “qualified to 

testify under the requirements of Section 74.401”). To determine whether a person 

is qualified on the basis of training or experience, the court shall consider whether 

he “is board certified or has other substantial training or experience in an area of 

medical practice relevant to the claim” and “is actively practicing medicine in 

rendering medical care services relevant to the claim.” Id. § 74.401(c).

Drs. Handyside and Prater assert that “[i]n order to satisfy the expert report 

requirement of [c]hapter 74, [Owens] needed to serve on [them] an expert report 

from someone who is qualified to offer opinions on the standard of care as it 
26

relates to the care they provided, as emergency [room] physicians.” According to 

Drs. Handyside and Prater, 

Dr. Richardson’s curriculum vitae and reports solely list his 

occupation as a medical doctor specializing in neurology. He also 

lists his clinical experience as that of being in private practice. He 

fails to show that he has any experience in emergency 

medicine . . . [and] fails to show that he has ever worked in an 

emergency department or worked closely with emergency [room]

physicians in treating and diagnosing patients . . . .

(Internal citations omitted.)

In his expert report, Dr. Richardson notes that he is a “physician in private 

practice,” “licensed to practice medicine in the State of California.” He has been 

in “private practice for 19 years” and is “board certified in adult neurology and 

vascular neurology by the American Board of Psychiatry and Neurology.” And 

Richardson further states: 

I have knowledge of [the] accepted and established standards of 

medical care for the patient[’]s diagnosis that is involved in the claim. 

I obtained this knowledge via my residency and fellowship training as 

well as via experience[] gained in the practice of neurology for 19 

years.

. . . .

As a neurologist board certified in general adult neurology and 

vascular neurology[,] I have seen, diagnosed and managed many 

patients with dural sinus thrombosis. I have also seen, diagnosed and 

managed many patients with idiopathic intracranial hypertension 

(formerly referred to as pseudotumor cerebri or benign intracranial 

hypertension). As such[,] I am familiar with the standard of care for 

the diagnosis, care and treatment of both dural sinus thrombosis and 

idiopathic intracranial hypertension.
27

Richardson’s curriculum vitae also reveals that his fellowship focused on 

“[c]erebral blood flow and metabolism, and dementia,” he completed his residency 

in the field of neurology, and has conducted research related to Alzheimer’s 

disease, vascular dementia, and strokes.

In determining whether an expert is qualified, we must be careful not to 

draw expert qualifications “too narrowly.” Larson v. Downing, 197 S.W.3d 303, 

305 (Tex. 2006); Adeyemi v. Guerrero, 329 S.W.3d 241, 247 (Tex. App.—Dallas 

2010, no pet.). The specific issue in this case is whether Drs. Handyside and Prater 

failed to timely and appropriately diagnose and treat Owens’s conditions. 

Dr. Richardson’s report shows that he has experience in treating and 

diagnosing patients with the conditions suffered by Owens, namely dural sinus 

thrombosis and idiopathic intracranial hypertension. And he is familiar with the 

standard of care applicable to doctors who care for patients with the same 

conditions with which Owens presented. See Tawa v. Gentry, No. 01-12-00407-

CV, 2013 WL 1694869, at *7 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no 

pet.) (mem. op.) (expert sufficiently qualified to opine on standard of care by 

“showing the injury involved was of the type [the expert] treated in his practice” 

(internal quotation marks omitted)); Hillery v. Kyle, 371 S.W.3d 482, 487 (Tex. 

App.—Houston [1st Dist.] 2012, no pet.) (concluding expert qualified, where 

expert stated familiarity “with the standards of care relevant to the condition 
28

involved in th[e] claim” and he had “diagnosed and treated, ‘patients with the 

conditions similar to those experienced by’” plaintiff); Rittger, 332 S.W.3d at 558–

59 (noting focus not on defendant doctor’s area of expertise, but on condition 

involved in claim). 

Further, we note that the fact that Dr. Richardson is a neurologist, rather than 

an emergency room doctor, does not disqualify him as an expert in this case. See 

Rittger, 332 S.W.3d at 559 (holding neurologist/professor of medicine qualified to 

opine on standard of care in case against emergency room doctor who failed to 

diagnose stroke in pregnant patient, explaining fact patient “was pregnant when 

she experienced her stroke or that she presented herself in an emergency room 

setting does not require that [expert] be an obstetrician or emergency room 

physician”); see also Hayes v. Carroll, 314 S.W.3d 494, 504–05 (Tex. App.—

Austin 2010, no pet.) (holding doctor, board certified in general and vascular 

surgery, qualified to render opinion on standard of care applicable to emergency 

room specialist); Blan v. Ali, 7 S.W.3d 741, 746–47 (Tex. App.—Houston [14th 

Dist.] 1999, no pet.) (concluding neurologist qualified as expert on strokes, 

although defendant doctors were emergency room doctor and cardiologist).

We conclude that Dr. Richardson has the knowledge, skill, experience, 

education, or training to render an opinion on the standard of care applicable to a 

doctor treating a patient with the conditions with which Owens presented. 
29

Accordingly, we hold that the trial court erred to the extent that it granted Drs. 

Handyside’s and Prater’s motions to dismiss Owens’s claims on the ground that 

Richardson is not qualified to opine on the standard of care.

Causation

Owens next argues that the trial court, to the extent that it granted Drs. 

Handyside’s and Prater’s motions to dismiss her claims on the ground that Dr. 

Richardson did not adequately address the issue of causation, erred because 

Richardson, in his report, sufficiently addresses the element of causation as it 

related to the doctors.14

An expert report must provide a “fair summary” of the expert’s opinions 

regarding the causal relationship between the failure of a health care provider to 

provide care in accord with the pertinent standard of care and the injury, harm, or 

damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6). In 

assessing the sufficiency of a report, a trial court may not draw inferences; instead, 

it must exclusively rely upon the information contained within the four corners of 

the report. Wright, 79 S.W.3d at 52. “No particular words or formality are 

 14 Because of our disposition of Owens’s third issue, we do not address the portion 

of her second issue in which she argues that the trial court erred to the extent that 

it granted Memorial Hermann’s motion to dismiss her direct-liability claims 

against it on the ground that Dr. Richardson’s report did not adequately address 

the elements of standard of care and causation. See infra.
30

required [in the expert report], but bare conclusions will not suffice.” Scoresby, 

346 S.W.3d at 556 (footnotes omitted).

A causal relationship is established by proof that a negligent act or omission 

constituted a substantial factor in bringing about harm and, absent the act or 

omission, the harm would not have occurred. Costello v. Christus Santa Rosa 

Health Care Corp., 141 S.W.3d 245, 249 (Tex. App.—San Antonio 2004, no pet.). 

However, an expert report need not marshal all of the plaintiff’s proof necessary to 

establish causation at trial, and it need not anticipate or rebut all possible defensive 

theories that may ultimately be presented to the trial court. Wright, 79 S.W.3d at 

52; Fortner v. Hosp. of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 

2013, no pet.). The expert must simply provide some basis that the defendant 

health care provider’s act or omission proximately caused injury. Wright, 79 

S.W.3d at 52–53. And the expert must explain the basis of his statements and link 

his conclusions to the facts. Id. at 52. A report that merely states an expert’s 

conclusions regarding causation is not sufficient. Id.; Palacios, 46 S.W.3d at 879. 

“[I]f an expert report contains only conclusions about [causation], the trial court 

has ‘no discretion but to conclude . . . that the report does not represent a goodfaith effort’ to satisfy the statute.” Smith v. Wilson, 368 S.W.3d 574, 577 (Tex. 

App.—Austin 2012, no pet.) (quoting Palacios, 46 S.W.3d at 877, 880).
31

In his expert report, Dr. Richardson explains:

. . . Owens developed dural sinus thrombosis . . . . This is an 

uncommon, but well known condition that is treatable with 

anticoagulant medications. There was a significant delay in the 

diagnosis of this condition. This delay resulted in the development of 

a complication, severe vision loss due to idiopathic intracranial 

hypertension. Severe vision loss due to intracranial complication can 

generally be easily treated with medication if it is diagnosed early. In 

the case of failure of medications, serial lumbar punctures can be done 

in some cases. Surgical procedures[,] such as lumboperitoneal shunt 

placement[,] are effective second line treatments. Optic nerve 

fenestration is an effective third level of treatment . . . .

Further, Richardson notes: “Untreated dural sinus thrombosis is well known to 

potentially cause idiopathic intracranial hypertension. Idiopathic intracranial 

hypertension may progress to blindness if untreated. It is medically probable that 

early diagnosis would have prevented [Owens’s] later development of vision loss.” 

(Footnote omitted.)

In regard to Dr. Handyside, specifically, Dr. Richardson, in his report, states 

that she breached the standard of care “by failing to perform a fundiscopic 

examination and failing to perform cerebral imaging[,] such as [a] head CT or 

preferably [a] brain MRI.” Further, “[t]he failure to obtain a neurology 

consultation . . . and the failure to admit the patient if urgent follow-up could not 

be obtained also constitutes a bre[a]ch of the standard [of] care.” In regard to 

causation, Richardson opines:

If Dr. . . . Handyside had performed cerebral imaging[,] such as [a] 

CT or preferably [an] MRI, performed [a] lumbar puncture or 
32

obtained [a] neurological consultation[,] it is medically probable 

that . . . Owens would have had her condition diagnosed and treated in 

a timelier manner. Early treatment of dural sinus thrombosis reduces 

the likelihood of complications[,] such as idiopathic intracranial 

hypertension. Thus[,] her vision would have most likely been spared 

and she would not have lost vision in the right and left eyes. Severe 

loss of vision is a preventable complication of dural sinus thrombosis.

(Footnote omitted.) 

Dr. Handyside asserts that Dr. Richardson “merely state[s] that had 

[she] . . . diagnosed [Owens], then [Owens] might have had a better outcome,” but 

fails to explain “how [her] . . . conduct caused the permanent loss of vision.” In 

other words, Richardson “does not explain how and why the complained of delay 

in diagnosis and treatment . . . were substantial factors in causing [Owens’s] 

blindness.”

An expert report must explain, to a reasonable degree, how and why the 

alleged breach caused the complained of injury based on the facts presented. See 

Jelinek, 328 S.W.3d at 539–40. Here, contrary to Dr. Handyside’s assertions, Dr. 

Richardson’s report does just that. Richardson opines that Handyside’s failure to 

“perform[] cerebral imaging[,] such as [a] CT or preferably [an] MRI, perform[] 

[a] lumbar puncture or obtain[] [a] neurological consultation” resulted in a delay in 

the diagnosis and treatment of Owens’s conditions. And “[t]his delay resulted in 

the development of a complication, severe vision loss due to idiopathic intracranial 

hypertension. Severe vision loss due to intracranial complication can generally be 
33

easily treated with medication if it is diagnosed early.” Cf. Patterson v. Ortiz, 412 

S.W.3d 833, 839 (Tex. App.—Dallas 2013, no pet.) (holding sufficient report 

“show[ing] that performing the tests and examinations would have led to the 

diagnosis of pneumonia and Raul’s admission to the hospital, where he would have 

received ‘early, aggressive treatment [that], more likely than not, would have saved 

his life’”). An expert may show causation by explaining a chain of events that 

begins with a defendant doctor’s negligence and ends in injury to the plaintiff. See

McKellar v. Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no 

pet.); see also Woofter v. Benitez, No. 01-09-00161-CV, 2009 WL 3930839, at *7 

(Tex. App.—Houston [1st Dist.] Nov. 19, 2009, no pet.) (mem. op.) (“Dr. Flye’s 

report sets forth a chain of events, involving breaches of the standard of care by 

each of the defendant physicians, which resulted in Islam’s death.”).

In regard to Dr. Prater, Dr. Richardson, in his report, states that Prater 

breached the standard of care by “fail[ing] to perform a lumbar puncture” on 

Owens, “fail[ing] to admit her” to the hospital, failing to “perform cerebral 

imagining[,] such as [a] head CT or [a] brain MRI,” failing to “obtain a 

neurological consultation to have [Owens] assessed urgently despite the diagnoses 

of possible meningoencephalitis and possible cavernous sinus thrombosis,” and 

failing to provide “adequate neurological follow-up” after Owens was discharged 

from Memorial Hermann. In regard to causation, Richardson opines:
34

If Dr[.] . . . Prater performed [a] lumbar puncture, ordered cerebral 

imaging[,] such as [a] head CT and preferably [an] MRI, admitted 

[Owens to the hospital] and/or obtained [a] neurological 

consultation, . . . Owens would have likely had a more timely 

diagnosis, earlier treatment and her vision would medically probably 

have been saved. If . . . Prater had not prescribed dexamethazone 

for . . . Owens[,] it is medically probable that her condition would not 

have been exacerbated. It is possible she would not have progressed 

to . . . have [a] loss of vision.

Further, Richardson states that “[i]f [Owens] was admitted [to the hospital], if a 

neurology consultation was obtained, and if a lumbar puncture had been done[,] it 

is medically probable that her condition, dural sinus thrombosis[,] would have been 

diagnosed earlier and her vision would have been saved with treatment.” As stated 

above, the treatments available to prevent Owens’s loss of vision are also 

addressed by Richardson in his report.

Dr. Prater asserts that Dr. Richardson “merely state[s] that had . . . Prater 

diagnosed [Owens], then she might have had a better outcome” and fails to explain 

“how . . . Prater’s conduct caused the permanent loss of vision.” In other words, 

Richardson “does not explain how and why the complained of delay in diagnosis 

and treatment and the prescription of dexamethasone were substantial factors in 

causing [Owens’s] blindness.”

Contrary to Dr. Prater’s assertions, however, Dr. Richardson’s report 

“explain[s], to a reasonable degree, how and why the [alleged] breach [by Prater] 

caused [Owens’s] injury.” See Jelinek, 328 S.W.3d at 539–40. Richardson opines 
35

that Prater’s failure to “perform[] [a] lumbar puncture, order[] cerebral imaging[,] 

such as [a] head CT and preferably [an] MRI, admit[] [Owens to the hospital], 

and/or obtain[] [a] neurological consultation” resulted in a delay of the diagnosis 

and treatment of Owens’s conditions. And “[t]his delay resulted in the 

development of a complication, severe vision loss due to idiopathic intracranial 

hypertension. Severe vision loss due to intracranial complication can generally be 

easily treated with medication if it is diagnosed early.” With earlier detection and 

treatment, Owens’s “vision would medically probably have been saved.” Cf. 

Patterson, 412 S.W.3d at 839; see also McKellar, 367 S.W.3d at 485; Woofter, 

2009 WL 3930839, at *7.

In support of their argument that it is insufficient for an expert report to 

merely state that a plaintiff “might have had a better outcome” without linking the 

expert’s conclusion (that the plaintiff might have had a better outcome) to a 

doctor’s alleged breach, Drs. Handyside and Prater rely on Wright. In Wright, the 

plaintiff alleged that a physician’s assistant misread or misplaced an x-ray and, 

therefore, did not discover that the plaintiff had fractured her foot. 79 S.W.3d at 

50. Approximately one month later, the plaintiff’s orthopedic surgeon discovered 

the fracture. Id. The plaintiff served on the defendant health care provider the 

report of an expert, who stated that had the x-ray been properly read, the plaintiff 

“would have had the possibility of a better outcome.” Id. at 51 (internal quotations 
36

omitted). The Texas Supreme Court, after recognizing that an expert in his report 

need not use any particular phrase, held that the trial court could have reasonably 

determined that the report did not represent a good-faith effort to summarize the 

causal relationship. Id. at 53. The supreme court noted that the expert in his report 

simply opined that the plaintiff had the “possibility of a better outcome,” and did 

not sufficiently “link[] the expert’s conclusion (that [the plaintiff] might have had a 

better outcome) to [the hospital’s] alleged breach (that it did not correctly read and 

act upon the x-rays).” Id. at 52–53 (internal quotations omitted).

Here, in contrast, Dr. Richardson does not simply assert that Owens would 

have had the “possibility of a better outcome” if not for Drs. Handyside’s and 

Prater’s alleged breaches of the standard of care. Instead, Richardson explains that 

the doctors’ breaches caused a delay in the diagnosis and treatment of Owens’s 

conditions. As stated in the report: “Untreated dural sinus thrombosis is well 

known to potentially cause idiopathic intracranial hypertension.” The delay in the 

diagnosis and treatment of Owens “resulted in the development of a complication, 

severe vision loss due to idiopathic intracranial hypertension.” “It is medically 

probable that early diagnosis would have prevented [Owens’s] later development 

of vision loss.” The treatments available to prevent Owens’s vision loss included 

medication, “serial lumbar punctures,” “lumboperitoneal shunt placement,” and 

“[o]ptic nerve fenestration.” See Khan v. Ramsey, No. 01-12-00169-CV, 2013 
37

WL 1183276, at *9 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (mem. 

op.) (holding expert report sufficient, where breach of standard of care caused 

delay in diagnosis, which resulted in “permanent disability”); Foster v. 

Richardson, 303 S.W.3d 833, 841 (Tex. App.—Fort Worth 2009, no pet.) (holding 

expert report adequate regarding causation because it explained how doctor’s 

delayed diagnosis subjected patient to prolonged pain); Gelman v. Cuellar, 268 

S.W.3d 123, 130 (Tex. App.—Corpus Christi 2008, pet. denied) (holding expert 

report adequate regarding breach and causation because it explained had patient 

“been properly monitored and timely treated post-operatively with aggressive 

respiratory care, she would not have developed respiratory insufficiency,” which 

caused her “anoxic brain damage”); In re Barker, 110 S.W.3d 486, 491 (Tex. 

App.—Amarillo 2003, orig. proceeding) (concluding expert report sufficient 

because it explained negligent failure to recognize medical condition and delay in 

treatment increased severity of plaintiff’s injuries).

Based on the foregoing, Dr. Richardson’s report represented an “objective 

good faith effort” to inform Drs. Handyside and Prater of the causal relationship 

between their failure to adhere to the pertinent standard of care and the injury, 

harm, or damages claimed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); 

Kelly v. Rendon, 255 S.W.3d 665, 679 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.) (emphasizing expert reports “are simply a preliminary method to show a 
38

plaintiff has a viable cause of action that is not frivolous or without expert 

support”). Accordingly, we hold that the trial court erred to the extent that it 

granted Drs. Handyside’s and Prater’s motions to dismiss Owens’s claims on the 

ground that Richardson’s expert report did not adequately address the element of 

causation.

15

We sustain Owens’s second issue, in part.

Vicarious Liability

In her third issue, Owens argues that the trial court erred in dismissing her 

vicarious-liability claims against Memorial Hermann because an expert report is 

not necessary regarding such claims. Memorial Hermann asserts that dismissal of 

Owens’s vicarious-liability claims against it is “mandatory” because Owens “failed 

to serve [a sufficient] expert report as to the individual physicians’ conduct that [is] 

the basis of the vicarious liability claim[s].”

In addition to her direct-liability claims against Memorial Hermann, Owens 

alleges that it is vicariously liable for the conduct of its “nurses, technicians, 

servants and[/]or agents” and “Amy Rasmussen, M.D.; Brian Zachariah, M.D.; 

Krista G. Handyside, M.D.; Inez A. Serrano, P.A.; Samuel J. Prater, M.D.; [and] 

Kenneth A. Totz, [D.O., FACEP].” 

 15 In her brief, Owens also asserts that Dr. Richardson’s report adequately addresses 

the standard of care as it relates to the doctors. However, because Drs. Handyside 

and Prater did not object to the report on this ground, we do not consider this 

portion of Owens’s argument.
39

“[W]hen a health care liability claim involves a vicarious liability theory, 

either alone or in combination with other theories, an expert report that meets the 

statutory standards as to the employee is sufficient to implicate the employer’s 

conduct under the vicarious theory.” Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 

632 (Tex. 2013); see also Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 

(Tex. 2008) (“When a party’s alleged health care liability is purely vicarious, a 

report that adequately implicates the actions of that party’s agents or employees is 

sufficient.”). In other words, a report that is sufficient as to an employee, whose 

alleged negligent conduct a vicarious-liability claim is based, is also sufficient as to 

the employer health care provider. See, e.g., Ctr. for Neurological Disorders, P.A. 

v. George, 261 S.W.3d 285, 295 (Tex. App.—Fort Worth 2008, pet. denied) (“[I]f 

the expert report is sufficient as to the claims against Dr. Ward, and we have held 

that it is[,] . . . then the report is sufficient as to claims against CND that are based 

on Dr. Ward’s alleged negligence.” (footnote omitted)).

Here, we have held that the trial court erred in dismissing Owens’s directliability claims against Drs. Handyside and Prater because Dr. Richardson’s expert 

report complies with chapter 74 regarding Owens’s allegations against the doctors. 

Therefore, contrary to Memorial Hermann’s assertion, dismissal of Owens’s 

vicarious-liability claims against it is not “mandatory.” Instead, Owens may 

proceed on her vicarious-liability claims against Memorial Hermann based on the 
40

conduct of Drs. Handyside and Prater. See Potts, 392 S.W.3d at 632; Gardner, 

274 S.W.3d at 671–72.

Further, we note that Owens alleges that Memorial Hermann is vicariously 

liable not only for the conduct of Drs. Handyside and Prater, but also for the 

conduct of its “nurses, technicians, servants and[/]or agents,” Drs. Rasmussen, 

Zachariah, and Totz, and physician assistant Serrano. Because Owens may 

proceed on her vicarious-liability claims against Memorial Hermann based on the 

alleged negligence of Drs. Handyside and Prater, she may also proceed on her 

vicarious-liability claims against Memorial Hermann based on the alleged 

negligent conduct of these other individuals. See TTHR Ltd. P’ship v. Moreno, 401 

S.W.3d 41, 45 (Tex. 2013) (holding plaintiff’s vicarious-liability claim against 

hospital for actions of nurses could proceed because expert report adequate 

regarding plaintiff’s vicarious-liability claim for negligent acts of doctors); Potts, 

392 S.W.3d at 629–32 (plaintiff entitled to proceed with her entire suit against 

health care provider so long as expert report valid as to one theory of liability 

against defendant); Huepers v. St. Luke’s Episcopal Hosp., No. 01-11-00074-CV, 

2013 WL 1804470, at *3–5 (Tex. App.—Houston [1st Dist.] Apr. 30, 2013, no 

pet.) (mem. op.) (holding no further report required where amended petition added 

new theory of vicarious liability against hospital based on nursing negligence 
41

because initial report sufficient as to plaintiff’s vicarious-liability claim against 

hospital based on doctor conduct).

And because Dr. Richardson’s report satisfies the requirements of chapter 74 

as to Memorial Hermann’s vicarious liability for the conduct of Drs. Handyside 

and Prater, Owens may also proceed on her direct-liability claims against 

Memorial Hermann.16 See Potts, 392 S.W.3d at 629–32 (holding plaintiff’s directliability claim against nursing staffing agency could proceed because expert report 

submitted by plaintiff supported her vicarious-liability claims); Children’s Med. 

Ctr. of Dall. v. Durham, 402 S.W.3d 391, 403–04 (Tex. App.—Dallas 2013, no 

pet.) (concluding, because expert report valid as to vicarious-liability claims 

against hospital, plaintiffs’ direct-liability claims against hospital “may proceed as 

well”).

Accordingly, we hold that the trial court erred in granting Memorial 

Hermann’s motion to dismiss Owens’s direct- and vicarious-liability claims against 

it.

 16 Because Dr. Richardson’s expert report is sufficient as to Owens’s vicariousliability claims against Memorial Hermann, based on the conduct of Drs. 

Handyside and Prater, we need not consider the report’s adequacy as to Owens’s 

direct-liability claims against Memorial Hermann. See San Jacinto Methodist 

Hosp. v. McCoy, No. 14-12-00682-CV, 2013 WL 3009318, at *5 n.3 (Tex. App.—

Houston [14th Dist.] June 13, 2013, no pet.) (mem. op.). Therefore, as stated 

previously, we do not address the portion of Owens’s second issue in which she 

asserts that Richardson’s report is adequate as to the issues of standard of care and 

causation as it pertained to her direct-liability claims against Memorial Hermann.
42

We sustain Owens’s third issue.

Conclusion

We reverse the trial court’s dismissal of Owens’s health care liability claims 

against Memorial Hermann and Drs. Handyside, Prater, and Totz. And we remand 

Owens’s health care liability claims against them to the trial court for further 

proceedings consistent with this opinion.

Terry Jennings

Justice 

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.