Harris County Hospital District v. Autrey Garrett, Individually and as Next Friend of J.G., D.G., and S.G., Minor Children

Opinion issued May 3, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00782-CV

__________

HARRIS COUNTY HOSPITAL DISTRICT, Appellant

V.

AUTREY GARRETT, INDIVIDUALLY AND AS NEXT FRIEND OF J.G.,

D.G., AND S.G., MINOR CHILDREN, Appellees

Appeal from the 152nd District Court of

Harris County, Texas

Trial Court Cause No. 2006-08198

O P I N I O N

In this interlocutory appeal, (1) appellant, Harris County Hospital District

("HCHD"), challenges the trial court's order denying its motion to dismiss the health

care liability claim (2) of appellees, Autrey Garrett, individually and as next of friend

of J.G., D.G., and S.G., her minor children.

We affirm the trial court's order.

Factual and Procedural Background

In their original petition, the Garretts allege that HCHD and others (3) were

negligent in failing to notify her of her diagnosis of ductal carcinoma of the breast

until July 2005, even though pathology findings establishing this diagnosis were

made on December 1, 2003, resulting in a significant delay of Garrett's treatment and

the advancement of her cancer.

In October 2003, Garrett sought obstetrics and gynecology care at Lyndon B.

Johnson Hospital ("LBJ"), and Dr. John Riggs "assumed care of [Garrett]." Riggs

"discovered a breast mass" in Garrett's left breast and ordered a breast ultrasound,

which was performed on October 6, 2003 and revealed that the mass was "possibly

suspicious for malignancy." Garrett followed up on the results with the Breast Clinic

at LBJ, which scheduled a biopsy. The biopsy was performed on November 25,

2003, and Garrett was "given a follow up appointment with the Breast Clinic for

December 10, 2003 to discuss the results." Although a "pathology report was ready"

on December 1, 2003, Garrett was not informed of the results of the biopsy until July

2005.

Garrett "transferred her care to Dr. Enrique Ortega," and, during her first visit

with him on November 13, 2003, Ortega also "noted a left breast mass." At a January

15, 2004 appointment, Dr. Ortega told Garrett that he "would obtain her biopsy report

from LBJ" because Garrett had informed him that LBJ "was charging $90 for same."

Although Ortega delivered Garrett's baby on April 23, 2004, and Garrett returned to

Ortega for two more appointments, he never informed Garrett of the biopsy results.

In July 2005, Garrett went to the LBJ emergency room complaining of

"worsening pain" in her left breast, and she was told, for the first time, of her

diagnosis of ductal carcinoma "from the initial November 25, 2003 needle biopsy."

During this visit, the LBJ oncology clinic evaluated Garrett and informed her that she

had "metastic breast cancer which had spread to her lumbar spine and lymph nodes

in her chest."

The Garretts allege that the defendants were negligent in failing to (1) "timely

inform [Garrett] of her cancer"; (2) "procure the results of the November 25, 2003

biopsy"; and (3) "follow appropriate American College of Radiology ('ACR')

guidelines." Garrett contends that as a result of defendants' negligence, her "cancer

spread beyond the confines of her breast," rendering her "treatment options and the

effectiveness of treatment . . . much more limited" and "resulting in injuries from an

acceleration and metastatis of her cancer, a significantly reduced life expectancy, lost

effective medical treatment and therapy, and medical and surgical treatment that was

unnecessary." The Garretts seek damages for physical pain, impairment, mental

anguish, disfigurement, medical expenses, lost earnings, and loss of consortium.

The Garretts timely served HCHD with an expert report (4) by Dr. Robert

McWilliams, M.D. In his report, McWilliams details his qualifications as follows:

I am a board-certified OBGYN and a Fellow of the American

College of Obstetricians and Gynecologists. I am also board eligible in

Reproductive Endocrinology. I have practiced obstetrics and

gynecology as a private practitioner in Denver, Colorado from July 1979

through June, 1998, following my residency at Los Angeles

County/USC Medical Center. I completed a 2-year fellowship in

Reproductive Endocrinology at Baylor College of Medicine in Houston

in June 1990. I was an assistant professor in the Department of

Obstetrics and Gynecology, Division of Reproductive Endocrinology at

the University of Texas Medical School at Houston from 1990 through

1992. I was Head of the Division of Reproductive Endocrinology,

Department of Obstetrics and Gynecology at MacGregor Medical

Association in Houston from January, 1993 until October, 1999. I

reentered private practice in 2000, and am currently a solo practitioner

in Gynecology and Reproductive Endocrinology in Houston, Texas.

In preparing his report, Dr. McWilliams reviewed the pertinent office and

clinical notes and lab and radiology reports of Dr. Ortega, Dr. Riggs, and LBJ. These

records reveal that Garrett began receiving obstetrical care at LBJ in September 2003

and "underwent her first obstetrical exam with L. Hunt, WNPC on October 3, 2003."

Hunt, a nurse practitioner, recorded a nodule on Garrett's left breast and made notes

"reflecting appropriate assessment and plans for referral." Furthermore, "the

attending physician," Riggs, "also made a note . . . reflecting knowledge of the breast

exam and nodule."

These records reveal that Garrett had an ultrasound performed at LBJ on

October 6, 2003, and, as a result, LBJ's "radiology staff" recommended a biopsy. Dr.

Riggs was notified of the findings of the ultrasound on October 10, 2003, and, on that

same date, a "referral note [was] made for [Garrett] to go to the breast clinic." Garrett

attended her second prenatal visit at the "LBJ obstetrical clinic" on October 31, 2003,

and Hunt again examined her. Hunt's notes reflect that Hunt "continued

surveillance" of Garrett's breast nodule and that Garrett had a biopsy appointment in

November 2003. Garrett attended her third prenatal visit at the "LBJ obstetrical

clinic" on November 26, 2003, and Hunt again examined her. Notes from this exam

indicate that Garrett's biopsy was performed on November 25, 2003 and that a

follow-up appointment was scheduled for December 10, 2003.

The records of the LBJ radiology department also show that Garrett's biopsy

was performed on November 25, 2003 and that samples "were obtained and sent to

pathology for review." The LBJ pathology department's report indicates a "final

pathologic diagnosis" of ductal carcinoma. (5)

Dr. Ortega's notes and Garrett's medical records show that Garrett transferred

her care to Ortega in late 2003 and that Ortega provided Garrett obstetrical care until

April 20, 2004. On November 13, 2003, during Ortega's initial physical of Garrett,

he noted her abnormal breast mass. Furthermore, an "authorization for release of

information" was completed, authorizing LBJ to release Garrett's records to Ortega.

Although Ortega's notes from Garrett's December 18, 2003 visit show that the results

of Garrett's biopsy were "to be given on 12/23/03," on January 15, 2004, Ortega

noted that he was "[u]nable to obtain Bx. Results (LBJ.), last mo., (Hospital

Reportedly charging pt. $90.00 to give her results!?). Report requested." Thus, as

Dr. McWilliams notes in his report, there is some evidence that, despite their requests,

Ortega and Garrett were not able to obtain the biopsy results from LBJ.

Dr. McWilliams further states in his report that Garrett visited the LBJ

emergency room on July 11, 2005 "with a 6 month history of left breast pain and

swelling." LBJ's notes reveal that a breast ultrasound and a surgical consult with the

oncology clinic was ordered, and a specific note from the emergency room to the

oncology service stated "no follow up on this ever, please evaluate." McWilliams

reviewed Garrett's subsequent medical records, which confirmed the existence of

"advanced disease . . . with metastasis." Garrett initiated treatment soon after she

learned of her diagnosis.

Based upon the above facts, Dr. McWilliams opines in his report that "the

medical care provided by LBJ Hospital and the physicians providing care to Garrett

fell below the standard of care." McWilliams further opines that "[n]umerous

physicians and support staff personnel at LBJ Hospital were involved in Ms. Garrett's

diagnosis and confirmation by breast biopsy of breast cancer[,] [y]et notification of

this unfortunate diagnosis to Ms. Garrett soon after the diagnosis" was never made

"via phone call or certified letter." In response to any potential defenses to be raised

by LBJ and its staff, McWilliams concludes that "[t]he fact that Ms. Garrett

transferred her care to an obstetrician outside the LBJ hospital system [did] not

absolve them from notifying Ms. Garrett of her breast cancer diagnosis." Also,

accepting the truth of Dr. Ortega's notes regarding his inability to obtain the biopsy's

results from LBJ and LBJ's attempt to charge Garrett $90 before releasing her results,

"the medical records department of LBJ Hospital was also liable in contributing to

the failure to notify Ms. Garrett of her diagnosis of cancer before it continued to

advance to a stage of poorer prognosis." With regard to the LBJ Hospital system,

McWilliams stated,

Where the greatest degree of medical liability within the LBJ

hospital system lies with respect to notification of this diagnosis to Ms.

Garrett is difficult to say. From

(1) Dr. Riggs, her obstetrician who first made the diagnosis of a left

breast mass to[;]

(2) L. Hunt, her nurse practitioner who initially examined Ms.

Garrett's left breast mass and continued her surveillance of the

mass and recommended Ms. Garrett keep her appointments with

the radiology department for a diagnosis of this mass to[;]

(3) the radiology staff or physicians who performed the needle biopsy

of the breast mass to[;]

(4) the pathology department where the tissue diagnosis was initially

made to[;]

(5) the medical records department who may or may not have refused

to give Ms. Garrett her medical records,

a combination of factors more than likely contributed to the failure to

notify Ms. Garrett of her breast cancer diagnosis.

. . . .

Without a diagnosis of breast cancer then, no effective diagnostic

measure and therapeutic options were considered or offered Ms. Garrett.

The inevitable consequence of Ms. Garrett's breast cancer and its

advancement to a poor prognosis with metastasis over an approximate

20 month delay could most likely have been prevented with

confirmation of the disease at the time of her biopsy.

HCHD filed objections to Dr. McWilliams's report and a motion to dismiss,

which the trial court denied.

Standard of Review

We review a trial court's decision on a motion to dismiss under section 74.351

for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios ,

46 S.W.3d 873, 875 (Tex. 2001) (predecessor statute); 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. See Garcia v. Martinez , 988 S.W.2d 219,

222 (Tex. 1999). When reviewing matters committed to the 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. Gray , 189 S.W.3d at 858 .

Expert Report

In its sole issue, HCHD argues that the trial court abused its discretion in

denying its motion to dismiss because Dr. McWilliams's expert report (1) "included

no curriculum vitae and nowhere in the body of the report did it show the author was

a competent expert as to [HCHD]"; (2) "failed to identify the standard of care

applicable to [HCHD]"; and (3) "failed to show that any conduct of [HCHD] caused

any damages."

A plaintiff bringing a healthcare liability claim must provide each defendant

health care provider with an expert report or voluntarily nonsuit the action. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp. 2006); Gray , 189 S.W.3d at

858 . The expert report is defined as 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 standards, and the causal

relationship between that failure and the injury, harm, or damages claimed. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 (r)(6) (Vernon Supp. 2006). If a plaintiff

timely files an expert report, a defendant may then file an objection challenging the

sufficiency of the report. Id . § 74.351(a). The trial court shall grant a motion to

dismiss 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. Id .

§ 74.351(l).

The only information relevant to the inquiry is within the four corners of the

document. Palacios , 46 S.W.3d at 878 . Although the report need not marshal all the

plaintiff's proof, it must include the expert's opinion on each of the elements

identified in the statute. See Palacios , 46 S.W.3d at 878-79 ; Gray , 189 S.W.3d at

859 . In setting out the expert's opinions, the report must provide enough information

to fulfill two purposes if it is to constitute a good-faith effort. Palacios , 46 S.W.3d

at 879 . First, the report must inform the defendant of the specific conduct the

plaintiff has called into question. Id. Second, the report must provide a basis for the

trial court to conclude that the claims have merit. Id. A report that merely states the

expert's conclusions does not fulfill these two purposes. Id. Rather, the expert must

explain the basis of his statements to link his conclusions to the facts. Bowie , 79

S.W.3d at 52 . However, a plaintiff need not present evidence in the report as if she

were actually litigating the merits. Palacios , 46 S.W.3d at 879 . Furthermore, the

report can be informal in that the information in the report does not have to meet the

same requirements as the evidence offered in a summary judgment proceeding or at

trial. Id.

Curriculum Vitae and Qualifications

HCHD first contends that it was not permissible for Dr. McWilliams to set

forth his curriculum vitae in a paragraph contained in his expert report. Alternatively,

HCHD contends that the curriculum vitae is "grossly inadequate" because it fails to

establish Dr. McWilliams's credentials as an expert "on the operation of a major

metropolitan hospital's records systems or pathology labs."

In regard to the Garretts' service of Dr. McWilliams's curriculum vitae, HCHD

has failed to cite any authority for the proposition that a curriculum vitae must be

furnished as a separate document. (6) Section 74.351(a) provides merely that a claimant

shall serve "one or more expert reports, with a curriculum vitae of each expert ." Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 (a) (Vernon Supp. 2006) (emphasis added).

Section 74.402, which addresses the qualifications of an expert in a suit against a

health care provider, also does not include a requirement that a curriculum vitae be

served as a separate document. Id . § 74.402 (Vernon 2005).

In regard to Dr. McWilliams's qualifications, section 74.351 defines "expert,"

with respect to a person giving opinion testimony regarding whether a health care

provider departed from accepted standards of health care, to mean "an expert

qualified to testify under the requirements of Section 74.402." Id . § 74.351. Under

section 74.402, a person may qualify as an expert witness on the issue of whether the

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

health care provider, if the defendant health care provider is an

individual, at the time the testimony is given or was practicing

that type of health care at the time the claim arose;

(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.

Id . § 74.402(b) (Vernon 2005).

"Practicing health care" is defined as including (1) training health care

providers in the same field as the defendant health care provider at an accredited

educational institution or (2) serving as a consulting health care provider and being

licensed, certified, or registered in the same field as the defendant health care

provider. Id . § 74.402(a)(1), (2). To determine whether an expert "is qualified on the

basis of training or experience" under subsection (b)(3), a court is to consider whether

the expert (1) is certified by a licensing agency of one or more states of the United

States or a national professional certifying agency, or has other substantial training

or experience, in the area of health care relevant to the claim and (2) is actively

practicing health care in rendering health care services relevant to the claim. Id .

§ 74.402(c)(1), (2) (Vernon 2005).

As stated in his expert report, Dr. McWilliams is "a board-certified OBGYN

and a Fellow of the American College of Obstetricians and Gynecologists" and is also

"board eligible in Reproductive Endocrinology." Following his residency,

McWilliams practiced obstetrics and gynecology from July 1979 through June 1988.

Then, after completing a two-year fellowship in Reproductive Endocrinology at

Baylor College of Medicine, he served as an assistant professor at the University of

Texas Medical School in the Department of Obstetrics and Gynecology for two years.

McWilliams subsequently served as the head of the reproductive endocrinology

division for the department of obstetrics and gynecology at a medical association for

approximately seven years. Finally, he reentered private practice in 2000, and

currently practices as a solo practitioner in gynecology and reproductive

endocrinology in Houston.

We note that the specific nature of the Garretts' claims is that HCHD

employees and staff failed to inform Garrett of her diagnosis and failed to release her

medical records to both her and her doctor. The pertinent standard of care identified

in Dr. McWilliams's report is that HCHD employees and staff should have timely

informed Garrett of her cancer diagnosis and should have released her medical

records, including her biopsy results, to both her and her doctor upon their respective

requests. In regard to the nature of the Garretts' claims and the pertinent standard of

care, HCHD has provided us with no authority that would require McWilliams to

possess expertise "on the operation of a major metropolitan hospital's records systems

or pathology labs."

We conclude that Dr. McWilliams is qualified to serve as an expert on the issue

of whether HCHD departed from the accepted standards of care in regard to the

Garretts' claims. McWilliams established his expertise in the fields of obstetrics and

gynecology and satisfied the statutory requirements by showing that he is practicing

health care in a field of practice that involves the same type of care or treatment as

that delivered by HCHD; 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 is qualified on the basis of training or experience to offer

an expert opinion regarding those accepted standards of health care. Accordingly, we

hold that the trial court did not err in denying HCHD's motion to dismiss the health

care liability claims of the Garretts on the grounds that Dr. McWilliams set forth his

curriculum vitae in his expert report and that he did not establish his credentials as

an expert on the operation of a major metropolitan hospital's records systems or

pathology labs."

Standard of Care

HCHD next argues that Dr. McWilliams's report is inadequate because "it fails

to identify the standard of care that was allegedly breached" and "never states what

should have been done." HCHD asserts that McWilliams's statements in his report

that no person notified Garrett of her diagnosis does not establish that the standard

of care required such notification. HCHD also asserts that Garrett was being treated

by multiple health care providers, including nurses and physicians, "who all may or

may not have had access to the information," and that the complaint that all of those

providers failed to inform her of her cancer diagnosis does not show a duty owed by

any one provider.

In identifying the standard of care, whether a defendant breached his or her

duty to a patient cannot be determined absent specific information about what the

defendant should have done differently. Palacios , 46 S.W.3d at 880 . 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 . When a plaintiff sues more than one defendant, the expert report

must set forth the standard of care for each defendant and explain the causal

relationship between each defendant's individual acts and the injury. See Doades v.

Syed , 94 S.W.3d 664, 671-72 (Tex. App.--San Antonio 2002, no pet.); Rittmer v.

Garza , 65 S.W.3d 718, 722-23 (Tex. App.--Houston [14th Dist.] 2001, no pet.).

The pertinent standard of care identified by Dr. McWilliams is that an HCHD

employee should have informed Garret of her biopsy results and should have released

those results upon Garrett's or Dr. Ortega's request. See Columbia Rio Grande

Regional Healthcare, L.P. v. Hawley , 188 S.W.3d 838, 843-44, 848-51 (Tex.

App.--Corpus Christi 2006, pet. filed) (affirming jury verdict against hospital for its

negligence in failing to timely and properly convey cancer diagnosis to patient for

almost full year); see also Bowie , 79 S.W.3d at 52 (recognizing that report fairly

summarized standard of care because it stated that hospital should have established

procedures to read and interpret x-rays in timely manner and to inform patients about

results). HCHD asserts that no one, other than the pathology department and records

department, are even mentioned in the report in relation to the hospital. However,

although the report primarily focuses on the actions of Garrett's treating physicians,

including Dr. Riggs, the attending physician at LBJ, the report also specifically

references both the conduct of nurse practitioner Hunt and the conduct of LBJ's

medical records department in refusing or failing to release Garrett's biopsy results

when Dr. Ortega and Garrett requested those results. Thus, we conclude, from our

review of the four corners of the report, and in light of the specific nature of the

Garretts' claims, that the report informs HCHD of the specific conduct that the

Garretts have called into question, the standards of care that should have been

followed, and what HCHD should have done. Accordingly, we hold that the trial

court did not err in denying HCHD's motion to dismiss the health care liability claims

of the Garretts on the ground that McWilliams's report fails to identify HCHD's

standard of care and state what HCHD should have done.

Causation

Finally, HCHD asserts that Dr. McWilliams's report "never identifies what

caused the alleged damages" and does not show that Garrett "actually sustained" any

damages. HCHD also asserts that the report indicates only that the delay in informing

her of her diagnosis led to a "a poor forecast for the disease," which "is not an actual

damage." Futher, HCHD asserts that the report did not show "that anything different

would have happened." As noted above, an expert report must provide a fair

summary of the expert's opinions regarding the causal relationship between the

failure of the 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). Here, Dr. McWilliams states in his report that Hunt, a

nurse practitioner who examined Garrett during her prenatal visits, was assisting in

"continued surveillance" of Garrett's breast nodule, was aware of the biopsy, and

failed to inform Garrett of her diagnosis. McWilliams also states in his report that

the LBJ radiology department performed a biopsy of Garrett's left breast on

November 25, 2003, the biopsy samples were sent to LBJ's pathology department for

review, and a "final pathologic diagnosis" of ductal carcinoma was made on

December 1, 2003, yet Garrett was never notified of this diagnosis by any LBJ

employee. McWilliams opined that nurse Hunt as well as LBJ employees in the

pathology department and LBJ's "radiology staff" had a responsibility to notify

Garrett of this diagnosis. McWilliams also cited in his report a note from LBJ's

emergency room to the oncology service, made after Garrett visited the LBJ

emergency room in July 2005, that stated " no follow up on this ever, please evaluate ."

(emphasis added).

Furthermore, Dr. McWilliams's report indicates that after Garrett transferred

her care to Dr. Ortega, an OBGYN outside of the LBJ system, Ortega and Garrett

sought to obtain the biopsy results from LBJ, but were unable to obtain them.

McWilliams opined that LBJ staff in the medical records department had a

responsibility to provide Garrett her medical records, including her biopsy results,

and that the failure to provide those results violated HCHD's standard of care. Again,

in response to any potential claim by HCHD that Dr. Ortega, or another treating

physician for which HCHD was not liable, was solely charged with the responsibility

to notify Garrett, McWilliams asserted that HCHD was not absolved of its

responsibility to notify Garrett of her diagnosis because she transferred her care to a

doctor outside the LBJ system. McWilliams also noted in his report, despite HCHD's

apparent failure or refusal to release Garrett's records, that a form authorizing the

release of her medical records to Dr. Ortega had been completed.

In regard to whether Garrett sustained any harm as a result of the

approximately one and one-half year delay in learning of her cancer diagnosis, Dr.

McWilliams stated in his report that when Garrett finally visited the LBJ emergency

room, she presented "with a 6 month history of left breast pain and swelling." At this

point, Garrett had developed "advanced disease . . . with metastasis." McWilliams

further stated that because of the delay in communicating the diagnosis, "no effective

diagnostic measure and therapeutic options were considered or offered Ms. Garrett,"

with the "consequence" of the cancer's "advancement to a poor prognosis with

metastasis." McWilliams opined that such advancement with metastasis (7) "could most

likely have been prevented with confirmation of the disease at the time of her biopsy"

and absent the "approximate 20 month delay."

In support of its causation argument, HCHD relies on Bowie , where the

plaintiff alleged that a hospital's physician's assistant misread or misplaced an x-ray

and, therefore, did not discover that the plaintiff had fractured her foot. Bowie , 79

S.W.3d at 50 . Approximately one month later, the plaintiff's orthopedic surgeon

discovered the fractured foot. Id . The plaintiff filed an expert report, which stated

that had the x-ray been properly read, she "would have had the possibility of a better

outcome." Id . at 51. The supreme court, after recognizing that a report need not use

any particular magical words, 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 court noted that the report simply opined that the

plaintiff had a "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.

Here, in contrast, Dr. McWilliams opined in his expert report that HCHD's

breach of its standard of care permitted Garrett's cancer to advance and metastasize.

See Linan v. Rosales , 155 S.W.3d 298, 305-06 (Tex. App.--El Paso 2004, pet.

denied) (affirming verdict in favor of plaintiff for doctor's failure to timely diagnose

cancer based on evidence that during two-month period cancer "involved the lymph

vessels" and caused edema and that advancement of cancer eliminated option of

breast conserving therapy); In re Barker , 110 S.W.3d 486, 491 (Tex. App.--Amarillo

2003, no pet.) (finding expert report stating that negligent failure to recognize

medical condition and delay in treatment increased severity of plaintiff's injuries to

be sufficient). McWilliams further noted in his report that as a result of the failure

to timely inform Garrett of her cancer, Garrett, in July 2005, presented herself at

LBJ's emergency room with a six month history of pain and swelling in her breast.

Furthermore, McWilliams opined that the failure to timely inform Garrett of her

diagnosis eliminated the availability of effective diagnostic measures and therapeutic

options.

We conclude that Dr. McWilliams, in his report, provided a fair summary of

the causal relationship between HCHD's failure to meet the pertinent standard of care

and the Garretts' damages. Accordingly, we hold that the trial court did not err in

denying HCHD's motion to dismiss the health care liability claims of the Garretts'

on the ground that McWilliams's report does not show that HCHD's conduct actually

caused the Garretts' any damages.

We overrule HCHD's sole issue.

Conclusion

We affirm the order of the trial court.

Terry Jennings

Justice

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

1. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(9) (Vernon Supp. 2006).

2.

"'Health care liability claim' means a cause of action against a health care provider

or physician for treatment, lack of treatment, or other claimed departure from accepted

standards of medical care, or health care, or safety or professional or administrative

services directly related to health care, which proximately results in injury to or death

of a claimant, whether the claimant's claim or cause of action sounds in tort or

contract." Id . § 74.001(a)(13) (Vernon 2005). "Health care provider" includes any

person, partnership, professional association, corporation, facility, or institution duly

licensed, certified, registered, or chartered by the State of Texas to provide health

care, including a registered nurse or a health care institution. Id . § 74.001(a)(12)(A).

"Health care institution" includes a hospital or a hospital system. Id . § 74.001(a)(11).

3.

The Garretts sued HCHD doing business as Lyndon B. Johnson Hospital ("LBJ").

Thus, references in this opinion to LBJ implicate HCHD. The Garretts also sued

Michelle Lesslie, D.O., Marian Bonner, M.D., Emily Robinson, M.D., Enrique

Ortega, M.D., the University of Texas System, and the University of Texas Health

Science Center at Houston, none of whom are parties to this appeal.

4.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a) (Vernon Supp. 2006).

5.

Dr. McWilliams summarizes the report as follows: "A final pathological diagnosis of

the biopsied left breast nodule to be 'breast with ductal carcinoma, modified Black's

Nuclear Grade: 3 (poorly differentiated), focus suspicious for lymphovascular

invasion identified, and ductal carcinoma in situ: possible foci present, await

immunostains for confirmation.'"

6.

Papkov v. Schiffman , No. 01-00-01099-CV, 2002 WL 1041118 , at *1 (Tex.

App.--Houston [1st Dist.] May 23, 2002, no pet.) (mem. op.), the case cited by

HCHD in support of its argument, is not on point as the appellant in that case wholly

failed to file a curriculum vitae. Id . Moreover, we note that the Corpus Christi Court

of Appeals has rejected a similar complaint. See Carreras v. Marroquin , No.

13-05-082-CV, 2005 WL 2461744 , at *2 (Tex. App.--Corpus Christi Oct. 6, 2005,

pet. filed) (mem. op.) ("The statute does not expressly prohibit a claimant from

including the curriculum vitae within the body of the report, as was done in this

case.").

7.

"Metastasis" means "the development of secondary malignant growths at a distance

from a primary site of cancer." The New Oxford American Dictionary 1074 (1st

ed. 2001).