Opinion

Opinion to Issue: November 19, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00161-CV

AARON LEE

WOOFTER, M.D.; DANNY CHU, M.D.; JONATHAN

CHARLES

DANIEL, M.D.; AND FRED MILTON SUTTON, JR., M.D. , Appellants

V.

MOLLY

BENITEZ, INDIVIDUALLY AND AS REPRESENTATIVE OF

THE ESTATE OF

ANDREA JIMENEZ ISLAM, DECEASED, AND KAZI

M. ISLAM,

Appellees

On Appeal from Probate Court No. 1

Harris County, Texas

Trial Court

Cause No. 362,807-401

MEMORANDUM opinion

In their sole issue on this

interlocutory appeal, Doctors Aaron Lee Woofter, M.D., Danny Chu, M.D.,

Jonathan Charles Daniel, M.D., and Fred Milton Sutton, Jr. M.D. (collectively,

“the doctors” or “appellants”) contend that the court abused its discretion

when it declined to dismiss the medical malpractice suit pending against them.

We affirm.

Background

During the course of her chemotherapy

for tonsil cancer, Andrea Islam had difficulty eating and was becoming malnourished.

In an attempt to alleviate these conditions, Dr.

Woofter and Dr. Sutton inserted a percutaneous

endoscopic gastrostomy (PEG) tube into Islam’s stomach but tore her

esophagus. A barium swallow study was administered that revealed a leak and Dr.

Chu and Dr. Daniel performed surgery to repair the tear. Islam later died of

respiratory failure. Brought by her surviving heirs (collectively, “the family”),

this medical negligence case claims Islam died of aspiration pneumonia

resulting from the barium leaking from her esophagus into adjacent tissue.

The family timely served the doctors with

the required report and curriculum vitae of their expert, Mark S. Sanders, M.D.

The doctors objected to the sufficiency of the expert report and filed a

motion to dismiss. [1] After the family filed a

response and a request for a 30-day extension to cure any deficiency and a

hearing was held on the matter, the doctors’ motion to dismiss was denied.

That ruling was previously appealed to this Court, and, finding that report to

be deficient, we held that the trial court’s denial of the doctors’ challenge

to the Sanders expert report was error. Specifically, we found that the report

failed to provide a sufficient basis for the trial court to find that Dr.

Sanders, an orthopedic surgeon, was qualified to opine on the appropriate

standards of care for gastroenterologists, Dr. Chu and Dr. Daniel, or

cardiothoracic surgeons, Dr. Woofter and Dr. Sutton. Woofter v. Benitez ,

No. 01-06-01123-CV, 2008 WL 2466223 (Tex. App.—Houston [1st Dist.] June 19,

2008, no pet.) (mem. op.).

Following a 30-day extension, the

family submitted expert reports and curricula vitae for two new experts: Todd

Eisner, M.D. and M. Wayne Flye, M.D. The doctors objected to the sufficiency

of these expert reports as well and filed another motion to dismiss. After the

family filed a response and a request for a 30-day extension to cure any

deficiency, the trial court denied doctors’ motion to dismiss and this

interlocutory appeal ensued.

Discussion

Appellants assert that the trial

court abused its discretion when it found the expert reports of Drs. Eisner and

Flye to be sufficient. [2]

I. Applicable Law

A. Standard of Review

We review all rulings on section 74.351

under an abuse of discretion standard. Am. Transitional Care Ctrs. v.

Palacios , 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner or without reference

to any guiding rules or principles. See Walker v. Gutierrez ,

111 S.W.3d 56, 62 (Tex. 2003). When reviewing matters committed to the trial

court’s discretion, we may not substitute our own judgment for that of the

trial court. Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992). 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. See Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238,

242 (Tex. 1985).

Although we defer to the trial

court’s factual determinations, we review questions of law de novo. Rittmer

v. Garza , 65 S.W.3d 718, 722 (Tex. App.—Houston [14th Dist.] 2001, no

pet.). To the extent resolution of the issue before the trial court requires

interpretation of the statute itself, we apply a de novo standard. Buck v.

Blum , 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

B. Chapter 74 Expert Report

Requirements

Section 74.351 imposes a threshold to prevent frivolous or

premature lawsuits from proceeding until a good-faith effort has been made to

demonstrate that at least one expert believes that a breach of the

applicable standard of care caused the claimed injury. Wilson-Everett v.

Christus St. Joseph , 242 S.W.3d 799, 803 (Tex. App.—Houston [14th

Dist.] 2007, pet denied) (citing Murphy v. Russell , 167 S.W.3d 835, 838

(Tex. 2005); Walker v. Gutierrez , 111 S.W.3d 56, 66 (Tex. 2003)).

In reviewing whether an expert report complies with Chapter

74, we evaluate whether the report “represents a good-faith effort” to comply

with the statute. Strom v. Mem’l Hermann Hosp. Sys ., 110 S.W.3d

216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Although the

report does not need to marshal all of the plaintiff’s proof, it must include

the expert’s opinions on the three statutory elements—standard of care, breach,

and causation. See Palacios , 46 S.W.3d at 878, 880 ; Spitzer v. Berry ,

247 S.W.3d 747, 750 (Tex. App.—Tyler 2008, pet. denied) (quoting Palacios ,

46 S.W.3d at 880 ) (stating “fair summary” is “something less than a full

statement” of the applicable standard of care, how it was breached, and how

that breach caused the injury). In detailing these elements, the report must

provide enough information to fulfill two purposes if it is to constitute a

good faith effort. First, it must inform the defendant of the specific conduct

that the plaintiff has called into question. Palacios , 46 S.W.3d at 879 .

Second, it 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

as to the standard of care, breach, and causation does not fulfill these two

purposes. Id . The expert must explain the basis for his statements and

link his conclusions to the facts. Bowie Mem’l Hosp. v. Wright , 79

S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff , 998 S.W.2d 882, 890

(Tex. 1999)). Furthermore, in assessing the report’s sufficiency, the trial

court may not draw any inferences, and instead must rely exclusively on the

information contained within the report’s four corners. See Palacios ,

46 S.W.3d at 878 . A report’s adequacy does not depend on whether the

expert uses any particular “magic words.” Spitzer , 247 S.W.3d at 750

(quoting Wright , 79 S.W.3d at 53 ).

Medical malpractice plaintiffs must provide each

defendant physician and health care provider with an expert report within 120

days of filing suit or voluntarily nonsuit the action. Tex. Civ. Prac. & Rem. Code Ann . § 74.351(a) (Vernon Supp. 2008) . A defendant may then file an objection to the

sufficiency of the report within 21 days after the date the report was served.

See id . A

defendant may also file a motion seeking dismissal of the claims and attorneys’

fees and costs. See id. § 74.351(b) (providing that if sufficient

expert report not timely served in accordance with subsection (a), court shall,

on motion of affected defendant, enter order dismissing claim with prejudice with

respect to movant and awarding movant reasonable attorney’s fees and costs). The trial court shall grant the motion only if it appears,

after hearing, that the report does not represent a good faith effort to comply

with the statutory definition of an expert report. See id. § 74.351(1).

An “expert report” under Chapter 74 is

(1) a written report

(2) by an expert

(3) that provides, as to each

defendant, a “fair summary” of the expert’s opinions as of the date of the

report regarding

(a) applicable standards of care

(b)

the manner in which

the care provided failed to meet the standards; and

(c) the causal relationship between

that failure and the injury, harm, or damages claimed.

See id .

§ 74.351(r)(6); Palacios , 46 S.W.3d at 877 . For a document to be considered an “expert report”

for the purposes of subsection 74.351(r)(6) ,

it must be rendered by someone qualified to testify as an expert on the

relevant medical subject area. Hansen v. Starr , 123 S.W.3d 13, 19 (Tex.

App.—Dallas 2003, pet. denied).

II. Adequacy

of Expert Reports

Appellants assert that neither

the Eisner report nor the Flye report satisfy the requirements of section 74.351.

A. Appellants’ Arguments

as to Dr. Flye

Appellants assert that Dr. Flye’s report is generally inadequate as to

all four defendant physicians because (1) it does not address the actions of

each physician individually; (2) a copy of the autopsy report relied upon by

Dr. Flye to establish causation is not attached; (3) the report does not set

forth the qualifications of the pathologist who performed the autopsy upon

which Dr. Flye relied for his causation opinions; and (4) no causation is shown

because it does not demonstrate that Islam’s life expectancy accorded her more

than a 50% chance to survive.

As to Drs. Daniel and Chu, specifically, appellants argue that Dr. Flye’s report is inadequate because (1) it

makes no allegations of a violation of a standard of care against either of

them individually; and (2) to the extent that it does address the standard of

care and causation elements, these sections of the report are conclusory as to Drs. Daniel and Chu.

Appellants also argue that the Dr. Flye report is inadequate as to Drs. Sutton and Woofter because (1) Dr. Flye is not qualified to offer opinions

regarding the standard of care for either Drs. Sutton or Woofter; (2) the

report makes no allegations of a violation of a standard of care against either

Drs. Woofter or Sutton individually or

for the procedure in which they were involved; (3) the report criticizes Dr. Woofter for a procedure in which he was not

involved; and (4) to the extent that it does address the standard of care and

causation elements, these sections of the report are conclusory as to Drs. Sutton and Woofter.

B. Qualifications of Experts

Appellants argue that Dr. Flye, a thoracic surgeon, is not qualified

to opine as to the applicable standard of care for gastroenterologists Dr. Sutton’s and Dr.

Woofter’s endoscopic placement of a PEG tube.

An expert providing opinion

testimony regarding whether a physician departed from the accepted standards of

care must satisfy the requirements set forth in section 74.401. Tex. Civ. Prac. & Rem. Code Ann . §

74.351(r)(5)(A). Section 74.401 provides in pertinent part:

(a) In a suit involving a health care

liability claim against a physician for injury to or death of a patient, a

person may qualify as an expert witness on the issue of whether the physician

departed from accepted standards of medical care only if the person is a

physician who:

(1) is practicing medicine at the time

such testimony is given or was practicing medicine at the time the claim arose;

(2) has 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) is 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 Ann . § 74.401(a) (Vernon Supp. 2008).

An

expert testifying in a medical malpractice case need not be a specialist in the

particular branch of the profession for which testimony is offered; the statute

setting out the requisite qualifications focuses not on the defendant doctor’s

area of expertise, but on the condition involved in the claim. Blan v. Ali,

7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Where

two fields of medicine overlap, and a procedure is common to more than one

field, a physician in one of these fields may opine as to the standard of care

for that procedure in the other field. See Keo v. Vu , 76 S.W.3d 725,

732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). A trial court’s decision on whether a physician is

qualified to offer an expert opinion in a health care liability claim is

reviewed under an abuse of discretion standard. Moore v. Gatica , 269

S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet. denied).

Dr.

Flye, who is board certified in thoracic surgery, is currently Chief of

Thoracic Surgery at St. Louis Veterans Administration Hospital, St. Louis,

Missouri, and Chief of Surgery, Department of Surgery, Saint Louis Connect Care

Health Systems, St. Louis, Missouri. Appellants do not argue that Dr. Flye is not qualified to opine as to the

applicable standard of care for cardiothoracic surgeons Drs. Daniel and Chu, nor do they argue that Dr. Flye is not qualified to offer an opinion

as to the causal relationship between the injury, harm, or damages claimed and

the alleged departure from the applicable standard of care with regard to any

of the four defendant physicians. They do, however, challenge Dr. Flye’s qualifications to opine as to the

applicable standard of care for gastroenterologists Drs. Sutton and Woofter with regard to the placement of a PEG

tube.

In

his report, Dr. Flye states in pertinent part:

I am familiar with the standard of care for the

placement of a PEG tube, repair of an esophageal perforation and the use of a

barium swallow…I have placed a PEG tube hundreds of times. I am knowledgeable

as to the standard of care for surgeons for the care of patients such as Mrs.

Islam.

Appellants argue that Dr. Flye’s

statement that he had “placed a PEG tube hundreds of times” was insufficient

because Dr. Flye was required to

affirmatively state in his report that his experience placing percutaneous endoscopic gastrostomy tubes included placing

them endoscopically , rather than

surgically. The family argues that Dr. Flye did not need to go into such detail in his report.

Appellees further argue that the allegations against Drs. Woofter and Sutton

pertain to their decision to use a PEG tube and the manner in which the doctors

inserted it, and, as a thoracic surgeon who has placed a PEG “hundreds of times,”

Dr. Flye

is more than sufficiently qualified to opine as to these basic thoracic

issues. According to his

curriculum vitae, Dr. Flye is a member of the American Gastroenterological

Association and he has experience with endoscopic and laparoscopic procedures.

See Lively v. Blackwell , 51 S.W.3d 637 , 639 n.1 (Tex. App.—Tyler

2001, pet. denied) (noting that laparoscopic surgery belongs to the

broader field of endoscopy). In light of these factors, we conclude that the

trial court did not act without reference to guiding rules or principles when

determining that Dr. Flye was qualified to opine on the standard

of care for gastroenterologists Drs. Sutton

and Woofter . See Broders v. Heise ,

924 S.W.2d 148, 153 (Tex. 1996 ).

C. Standard of Care and

Breach

Appellants also contend that Dr. Flye’s report is inadequate because it

fails to address the actions of each physician individually; it does not allege

that any of the four defendant physicians violated a standard of care; and, to the extent that it does address the

standard of care element, these portions of the report are conclusory as to all

four defendant physicians .

In

his report, Dr. Flye divides the four defendants into two groups: Drs. Woofter

and Sutton (the gastroenterologists who placed the PEG tube and perforated

Islam’s esophagus) and Drs. Daniel and Chu (the thoracic surgeons who repaired

the esophageal perforation and administered the barium swallow study). With

respect to Drs. Woofter and Sutton, Dr. Flye states:

The standard of care for Dr. Woofter and Dr. Sutton in

the situation described above required them to not perforate [Andrea Islam’s]

esophagus during the attempted PEG placement. Specifically, it was the (sic)

breach of the standard of care to perforate the esophagus. Additionally, the

doctors Woofter and Sutton were aware that Mrs. Islam suffered from squamous

cell carcinoma of the right tonsil and had undergone chemotherapy and radiation

treatment prior to the attempted PEG placement. Because of the cancer of the

esophagus, Drs. Woofter and Sutton should not have attempted to place the PEG

tube. Unfortunately, they did proceed. Drs. Woofter and Sutton should have

used extreme caution during the procedure so as not to perforate her esophagus.

It is my opinion, based upon a reasonable degree of medical probability, that

in perforating Mrs. Islam’s esophagus, Dr. Woofter and Dr. Sutton breached the

standard of care. This breach was a proximate cause of Mrs. Islam’s death on

August 15, 2005.

With respect to Drs. Daniel and Chu , Dr. Flye opines, in pertinent part:

It is my opinion, based upon a reasonable degree of

medical probability, that in failing to repair Mrs. Islam’s esophageal

perforation, Dr. Daniel and Dr. Chu breached the standard of care.

Additionally, it is my opinion, based upon a reasonable degree of medical probability,

that in ordering a barium swallow, Dr. Daniel and Dr. Chu breached the standard

of care. These breaches were the proximate causes of Mrs. Islam’s death on

August 15, 2005.

It is true that Dr. Flye incorrectly states that “It is my

opinion that Dr. Woofter and his surgical team deviated from the standard of

care in the treatment of Mrs. Islam” when discussing the use of the barium

swallow, when he should have said Daniel and Chu. [3]

However, it is also apparent from the four corners of the report that Dr. Flye understood that Drs. Daniel and Chu were involved in the decision to administer the barium swallow study, not Drs. Woofter

and Sutton. In any event, Dr. Flye’s

other statements make it clear that he has informed Drs. Woofter and Sutton of

their specific conduct that appellees have called into question—attempting

placement of a PEG tube and the resulting

esophageal perforation. See Palacios , 46 S.W.3d at 879 (stating

that expert report must inform defendant of specific conduct plaintiff has

called into question and provide basis for trial court to conclude that claims

have merit). Dr. Flye has also informed Drs. Chu and Daniel of their specific

conduct that appellees have called into question—the improper repair of

the esophageal perforation and the ordering of a barium swallow. See id.

The

doctors rely upon Taylor v. Christus Spohn Health System Corp ., Rittmer

v. Garza, Doades v. Syed , and In re Boone to support their

contention that Dr. Flye’s report is inadequate as to the standard of care and

breach because it collectively refers to groups of doctors rather than setting

forth individual standards as to each defendant physician. See Taylor v. Christus Spohn Health Sys. Corp ., 169 S.W.3d 241, 243 (Tex. App.—Corpus

Christi 2004, no pet.); Rittmer v. Garza , 65 S.W.3d 718, 721 (Tex.

App.—Houston [14th Dist.] 2001, no pet.); Doades v. Syed , 94 S.W.3d 664 ,

671–72 (Tex. App.—San Antonio 2002, no pet.); In re Boone , 223 S.W.3d

398 , 405–06 (Tex. App.—Amarillo 2006, no pet.) . We find each of

these cases distinguishable.

In

Taylor , the defendants included a hospital, a doctors’ association, an

emergency room physician, and a cardiologist, and the expert failed to state

what each defendant should have done to meet the standard of care and failed to

do, and how the failure led to the patient’s death. Taylor , 169

S.W.3d at 245–46. In Doades , the expert report combined the standard of

care, breach, and causation into a general assertion that that treating

physician and nurse “[failed] to properly monitor Doades and . . . [failed] to

timely identify and properly treat [his] condition,” a statement the court of

appeals deemed conclusory. Doades , 94 S.W.3d 664, 668 , 671–72. Here,

Flye’s report comments on the failure of a uniform duty owed by two doctors to

the same patient. And, also unlike Taylor and Doades ,

Flye specifically names the individual doctors, identifies their specific

negligent actions, and discusses their failures according to the standard of

care that group of doctors owed to Islam.

In

Rittmer , the plaintiff conceded that her report failed to set out

specific standards of care for two distinct specialists—an oncologist

performing a mastectomy and a plastic surgeon performing reconstructive

surgery. Rittmer , 65 S.W.3d at 722 . Again, this is distinct from

Dr. Flye’s clear articulation of two separate standards of care—one for Drs. Woofter and Sutton (the

gastroenterologists who placed the PEG tube and perforated Islam’s esophagus)

and the second for Drs. Daniel and Chu (the thoracic surgeons who repaired the

esophageal perforation and administered the barium swallow study).

Appellants also argue that,

while it may be acceptable to group defendants under certain circumstances, the

expert must establish that the same standard of care applies to the physicians

he groups together. In re Boone , 223 S.W.3d at 405–06 . In

re Boone , however, does not stand for the proposition that the expert must

expressly state that the same standard applies to a group of defendants.

In that case, the expert merely grouped Boone, a physician’s assistant,

together with physicians and a medical association, and discussed one standard

of care applicable to the group. The court concluded that “[w]hile relators

may disagree with [the expert’s] opinions concerning the standard of care

applicable to each of those individual defendants, the report contains a fair

summary of his opinions and adequately informs them of the specific conduct

called into question.” Id. (citing Palacios , 46 S.W.3d at 879-80 ).

The same can be said for the

present case. While appellants may disagree with Dr. Flye’s opinions concerning the standard of care

applicable to each individual defendant, his report contains a fair summary of

his opinions and adequately informs each appellant of his specific conduct that

is being called into question. Palacios , 46 S.W.3d at 879–80. This is

sufficient to show a “good faith effort” to comply with section 74.351.

The doctors also argue that Dr. Flye’s statements with regard

to the standard of care are conclusory as to all four defendant physicians

because Dr. Flye does not

inform the defendants of what they should have done, but did not do. On the

contrary, Dr. Flye informs

Drs. Woofter and Sutton that, based upon Islam’s medical condition, namely her

cancer of the esophagus, they should have used an NG tube rather than a PEG

tube and, having decided to insert a PEG tube, they should have exercised

extreme caution so as not to have perforated Islam’s esophagus. Dr. Flye also informs Drs. Daniel

and Chu that, in his opinion, they should not have ordered the barium study

after Islam’s surgery and Dr. Flye proceeds to set forth a list of acceptable

alternative procedures. Having done so, Dr. Flye has sufficiently informed

each of the defendants of what they should have done, but did not do. This is

sufficient to show a “good faith effort” to comply with section 74.351.

D. Causation

Appellants assert that Dr. Flye’s

report is conclusory as to causation with respect to all four defendant

physicians. The causation requirement of an expert report in this context must

provide information linking the defendant’s purported breach of the standard of

care to the plaintiff’s injury. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351( r)(6); see also Arkoma Basin

Exploration Co. v. FMF Assocs. 1990-A, Ltd ., 249 S.W.3d 380 , 389 n.32 (Tex.

2008) (defining conclusory

as “[e]xpressing a factual inference without stating the underlying facts on

which the inference is based”). 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. This is sufficient under section

74.351. See Patel v. Williams , 237 S.W.3d 901 , 905–06 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Appellants, citing to Jones v.

King , 255 S.W.3d 156 (Tex. App.—San Antonio 2008, pet. denied), argue that

Flye’s report is conclusory because he did not attach the autopsy report or

qualifications of the pathologist who performed the autopsy upon which his

report relied for causation. The author of the report in Jones relied

upon the opinion and documentation of another physician in addressing causation

but did not qualify the other physician or attach documentation from the other

physician. The court of appeals noted that “the report’s adequacy must be judged

solely by its four corners” and rejected the reliance on the other physician’s alleged,

but absent, documentation to satisfy the causation requirement of section 74.351.

The family contends that Dr. Flye was not relying upon the autopsy report to

prove causation and that although he refers to the report’s findings, this mere

“observation does not substitute for Dr. Flye’s professional opinion.” Courts

have held that, in addressing causation, a reporting physician may rely on the

opinions of other individuals who have rendered reports or diagnoses. See

Kelly v. Rendon , 255 S.W.3d 665, 676 (Tex. App.—Houston [14th Dist.] 2008,

no pet.) (noting that “nothing in the health care liability statute prohibits

an otherwise qualified physician from relying on [another opinion] in the

formation of the physician’s own opinion”); see also generally Tex. R. Evid. 703 (stating an expert

may base his opinion on facts or data that is not admissible in evidence if it

is of type reasonably relied on by experts in that particular field). Dr. Flye

stated that Islam’s hospital records demonstrated that Islam developed

pneumontitis and aspiration pneumonia, medical conditions from which she never

recovered. The records informed his opinion that Islam’s death resulted from

the barium leaking into her lungs and surrounding tissue, causing her to

develop pneumontitis and subsequently die from respiratory failure.

Accordingly, it was not an abuse of discretion for the trial court to find Dr. Flye’s

opinions on causation to be sufficient under section 74.351, a gate-keeping

statute intended to weed out frivolous claims.

The doctors also allege that Dr. Flye’s

report is insufficient as to causation because he failed to show Islam’s

limited life expectancy allowed her a greater than 50% chance to survive her

cancer, citing Flores v. Eakin , No. 03-07-00477-CV, 2008 WL 3877684

(Tex. App.—Austin 2008, no pet.) (mem. op.). Flores involved an appeal

from a motion for summary judgment granted in favor of appellee physicians.

Without citing authority, the doctors argue that even though Flores

involved a motion for summary judgment, its reasoning should be applied to §

74.351 expert reports. Summary judgments, however, are subject to an entirely

different standard than the one presented in this case. Whereas a motion to

dismiss seeks to demonstrate that a plaintiff has not satisfied the procedural

requirements of Chapter 74, a motion for summary judgment seeks to demonstrate

that the substance of the claim lacks merit. See Smalling v. Gardner, 203 S.W.3d 354, 367 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see

also Apodaca v. Russo , 228 S.W.3d 252, 255 (Tex. App.—Austin 2007, no pet.)

(expert report is not required to prove defendant's liability, but rather to

provide notice of what conduct forms the basis for plaintiff’s complaints);

Palacios , 46 S.W.3d at 879 (“to avoid dismissal, a plaintiff need not

present evidence in the report as if it were actually litigating the merits. 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.”). We therefore find Flores inapplicable.

The two-fold purpose of an expert

report under section 74.351 is to inform the defendant

of the specific conduct the plaintiff has called into question, and to provide

the trial court with a basis to determine whether the plaintiff's claims have

merit. Patel , 237 S.W.3d at 906 . Pursuant to this standard, we conclude

that Dr. Flye’s report sufficiently addresses the element of causation, linking

the alleged breaches of the standard of care to Islam’s death—aspiration

pneumonia that developed after barium leaked out of Islam’s improperly repaired

esophagus into her lungs and adjacent tissue. Therefore, keeping in mind that section

74.351 expert reports are a preliminary method to show

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

expert support, we hold the trial court acted within its discretion in

concluding that Dr. Flye’s report complied with section 74.351 ’s

causation requirement as to all four defendants.

Having concluded that the trial court acted within its

discretion in finding Dr. Flye’s report sufficient under the statute, we need

not address the sufficiency of Dr. Eisner’s report. See generally Kelly ,

255 S.W.3d at 675–76 (when claimants submitted multiple reports from several

doctors and two nurses, sufficiency of reports as to each appellant would be

judged in aggregate, and sufficiency of each individual report was not

determinative); Packard v. Guerra , 252 S.W.3d 511 , 525–26 (Tex.

App.—Houston [14th Dist.] 2008, pet. denied) (each individual report need not

be adequate; instead, adequacy is based on aggregate content of all reports).

We conclude, therefore, that the court below did not abuse its discretion in

denying appellants’ motion to dismiss.

We overrule appellants’ sole issue.

CONCLUSION

We affirm the trial court’s order denying appellants’ motion to dismiss .

Jim

Sharp

Justice

Panel consists of Justices Jennings,

Higley, and Sharp.

[1] See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon

Supp. 2008) (requiring health care liability claimants to serve expert reports

no more than 120 days after original petition filed and defendant to file and

serve objections to sufficiency of expert report by 21st day after report

served, or else objections waived); id. § 74.351(b) (providing that if

sufficient expert report not timely served in accordance with subsection (a),

court shall, on the motion of affected health care liability defendant, enter

order dismissing claim with prejudice with respect to movant and awarding

movant reasonable attorney’s fees and costs); id. § 74.351(l) (stating

that a court “shall grant a motion challenging the adequacy of an expert report

only if it appears to the court, after hearing, that the report does not

represent an objective good faith effort to comply with the definition of an expert

report in Subsection (r)(6)”).

[2] Specifically, appellants argue that

(1) neither report addresses the actions of each physician

individually;

(2) neither report included the qualifications of the

pathologist who performed the autopsy nor the autopsy report upon which he

relied to establish causation;

(3) neither expert report shows Islam’s limited life

expectancy allowed her a greater than 50% chance to survive her cancer, thereby

failing to show causation;

(4) Dr. Eisner’s report is inadequate as to Dr. Sutton and

Dr. Woofter because

(a) it is critical of a procedure in which neither Dr.

Sutton nor Dr. Woofter were involved;

(b) it makes no allegations of a violation of a

standard of care against either Dr. Woofter or Dr. Sutton; and

(c) the standard of care and causation elements of the

report are conclusory as to Dr. Sutton and Dr. Woofter;

(5) Dr. Eisner’s report is inadequate as to Daniel and Chu because

(a) neither Dr. Daniel nor Dr. Chu were named in it;

(b) Dr. Eisner is not qualified to offer opinions

regarding the standard of care for either Dr. Daniel or Dr. Chu;

(c) it makes no allegations of a violation of a

standard of care against either Dr. Daniel or Dr. Chu; and

(d) the standard of care and causation elements of the

report are conclusory as to Dr. Daniel and Dr. Chu;

(6) Dr. Flye’s report is inadequate as to Sutton and Dr. Woofter

because

(a) Dr. Flye is not qualified to offer opinions

regarding the standard of care for either Dr. Sutton or Dr. Woofter;

(b) it makes no allegations of a violation of a

standard of care against either Dr. Woofter or Dr. Sutton individually or for

the procedure in which they were involved;

(c) it criticizes Dr. Woofter for a procedure in which

he was not involved; and

(d) the standard of care and causation elements of the

report are conclusory as to Dr. Sutton and Dr. Woofter; and

(7) Dr. Flye’s report is inadequate as to Dr. Daniel and Dr.

Chu because

(a) it makes no allegations of a violation of a

standard of care against either Dr. Daniel or Dr. Chu individually;

(b) the standard of care and causation elements of the

report are conclusory as to Dr. Daniel and Dr. Chu.

[3] Appellants argue that because Dr. Flye did

not identify the members of Dr. Woofter’s “surgical team,” his report does not

address Drs. Sutton, Daniel or Chu in reference to the barium study. While

this is true with regard to Sutton, it is certainly not the case as to Drs. Daniel

and Chu. Dr. Flye clearly states elsewhere in his report that “in ordering a

barium swallow, Dr. Daniel and Dr. Chu breached the standard of care.” Dr.

Sutton also argues that because he is not named in the report with respect to

the barium study that Dr. Flye’s expert report is “no report” to him. This

argument, however, ignores that fact that Dr. Flye criticizes Dr. Sutton

elsewhere in the report when discussing the procedure Sutton was actually

involved in—the insertion of the PEG tube.