Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-08-00260-CV

____________________

RAMIN MOHEB AND RAMIN MOHEB d/b/a

GREATER ORANGE WOMEN'S CENTER, Appellants

V.

ANDY FRED HARVEY, SR., INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF ALBERTA LAVON HARVEY,

EVELYN BLOCK, JUDY ERWAY, EDWARD RUSSELL

HARVEY, SR., ALBERT LEON HARVEY, AND JAMES E. HARVEY,

Appellees

On Appeal from the 163rd District Court

Orange County, Texas

Trial Cause No. B-070299-C

MEMORANDUM OPINION

Plaintiffs-appellees Andy Fred Harvey, Sr., individually and as personal representative

of the estate of Alberta Lavon Harvey, deceased; and Evelyn Block, Judy Erway, Edward

Russell Harvey, Sr., Albert Leon Harvey and James E. Harvey, (1) sued defendants-appellants

Ramin Moheb, M.D. ("Moheb") and Ramin Moheb, M.D., P.A. d/b/a Greater Orange

Women's Center ("GOWC") and other defendants for alleged medical malpractice.

Appellants filed objections to appellees' expert report and moved for dismissal. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351 ( l ) (Vernon Supp. 2008). Appellees filed a

supplemental report by the same expert. The trial court denied appellants' motion to dismiss.

Appellants then filed this interlocutory appeal, in which they raise four issues for our

consideration. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(9) (Vernon 2008). We

affirm.

Background

In their petition, appellees alleged that on or about June 22, 2005, the deceased,

Alberta Lavon Harvey, sought treatment from appellant Moheb at GOWC for "pain and

swelling in her left vulvar area." Appellees further asserted that Moheb took a culture of the

affected tissue, cauterized the area, and prescribed Augmentin. According to appellees,

Andy informed Moheb the next day that the area had worsened, and Moheb advised him to

take Alberta to the hospital. Appellees contended that Alberta was admitted that day to

Memorial Hermann Baptist Hospital in Orange by Dr. Marshall B. Packard, who started

treatment with the antibiotic Invanz, but Alberta did not significantly improve. Appellees

asserted that Alberta was transferred to Continue Care Hospital of Southeast Texas on June

26, 2005, and the culture Moheb had taken "was determined to show Methicillin Resistant

Staphylococcus Aureus (MRSA)." According to appellees' petition, Alberta's condition

continued to deteriorate, and on July 10, 2005, she was transferred to Memorial Hermann

Baptist Hospital-Orange "in shock with hypotension, acidosis, renal[,] and respiratory

failure." The petition further alleged as follows:

Exploratory surgery was performed on July 12, 2005 for possibly peritonitis

and gangrenous bowel. She continued to worsen and was transferred to

Memorial Hermann Baptist Hospital-Beaumont on July 13, 2005 to begin

dialysis. On July 23, 2005, Mrs. Harvey's condition of Multiple Organ Failure

Syndrome and Adult Respiratory Distress Syndrome worsened. She declined

into a coma and died later that same day from [s]epsis and abdominal/pelvic

infection.

The petition alleged that Moheb was negligent by improperly diagnosing Alberta with

cellulitis, failing to timely follow up on the culture he performed, failing to properly diagnose

Alberta's condition, failing to prescribe "sufficient proper antibiotics to combat the

infection[,]" and failing to control Alberta's infection. Appellees also contended in their

petition that appellants, "either individually, or through their agents, servants[,] or employees,

failed to exercise the care required by law in the medical care and treatment of Alberta Lavon

Harvey. The inappropriate care provided to Alberta Lavon Harvey was a proximate cause

of severe personal injuries to her and ultimately caused her death." Appellees filed an expert

report by Dr. Carl M. Berkowitz, a specialist in internal medicine and infectious diseases,

with their petition. Moheb and GOWC filed objections to Berkowitz's report, in which they

argued that: (1) Berkowitz was not qualified to offer an opinion as to liability and causation

as to each defendant; and (2) Berkowitz's report failed to meet the requirements of Chapter

74 and Palacios for the following reasons:

it fails to identify the defendants by name; fails to identify duty, standard of

care, breach thereof, and causation as to each defendant; fails to provide a

factual basis for his opinions and link his conclusions to the facts of the case;

fails to inform each of the defendants with sufficient specificity of the

defendant's conduct the plaintiffs have called into question; fails to discuss the

elements of medical negligence as to each defendant with sufficient specificity

to provide the trial court with a basis to conclude that the claims have merit

against each defendant; and the opinions are speculative, conclusory, vague,

and assume facts.

After receiving appellants' objections to the report, appellees filed a supplemental

report (2) by Berkowitz within the 120-day deadline provided by Chapter 74. See Tex. Civ.

Prac. & Rem. Code Ann. § 74.351 (a) (Vernon Supp. 2008). Berkowitz's second report

alleged as follows, in pertinent part:

History

At the time of the events in question Ms. Alberta Harvey was a 67 year old

woman with a history of diabetes mellitus, hypothyroidism, cerebral vascular

disease[,] and hypertension. On 6/22/05 she presented to the Greater Orange

Women's [C]enter complaining of a painful area of swelling in her left vulvar

area. She was seen by Dr. Ramin Moheb. She was felt by Dr. Moheb to have

an area suspicious for an abscess in the left labia majora. An attempt at

incision and drainage was performed, but no fluid was obtained. A culture of

the tissue was taken. The area was cauterized and Ms. Harvey was dismissed

on Augmentin. According to the laboratory report . . ., the culture report was

finalized as having MRSA on 6/26/05. I can not be certain as to when Dr.

Moheb became aware of the culture because, while the report was found in his

medical records, it was not initialed, nor is there any mention of it in his

records. Dr. Moheb dictated a report on 6/28/05 to [another physician] about

the evaluation [of] Ms. Harvey. It makes no mention of the labial culture or

the culture result.

On 6/23/05 the patient's husband called stating that the area of cellulitis had

worsened. Laboratory data from the previous day revealed an elevated white

blood cell count (WBC) of 15.1. The patient was advised to go to the

emergency room to be seen by her internist.

Ms. Harvey was admitted to Memorial Hermann Baptist Hospital on 6/23/05

by Dr. Marshall Packard. She was found to have a swollen tender

erythematous left labia. She had an elevated WBC of 17.2. She was given the

antibiotic Invanz intravenously. . . . Although Ms. Harvey showed a

normalization of her WBC, her labial process showed no significant

improvement. She continued to have considerable pain. On 6/26/05 she was

transferred to Continue Care [H]ospital of Southeast Texas for ongoing

antibiotic therapy with Invanz and wound care.

At Continue Care the patient was continued on Invanz. The labial area

remained erythematous and tender. . . . On 6/28/0[5] Dr. Packard became

aware of the MRSA culture from the office of Dr. Moheb. The Invanz was

discontinued, and Vancomycin and Clindamycin were started. . . . On 6/30/05

the patient was confused. Her labial lesion was minimally improved. . . . On

7/5/0[5] the patient had 2 bowel movements. The nurses reported her to be

confused, short of breath[,] and trying to get out of bed. Her abdomen was

noted to be large and distended. . . . On 7/8/05 the patient was documented to

have complained of diarrhea. Her labial lesion was unchanged. The

Vancomycin and Clindamycin were discontinued, and the antibiotics Cubicin

and Fluconazole were started. A stool sample was sent for clostridium

difficile toxin and on 7/8/05 it was reported as being positive. . . . She was felt

to have sepsis and acute renal insufficiency. . . . A CT scan showed marked

mucosal thickening of the colon suggesting colitis.

Ms. Harvey was admitted to Memorial Hermann Baptist Hospital-Orange on

7/10/05. She was continued on Cubicin and Fluconazole. She was in shock

with hypotension, acidosis, renal and respiratory failure. She was diagnosed

with the Multiple Organ Failure Syndrome (MOFS) caused by a severe

inflammatory colitis. . . . Intravenous Flagyl was added. . . . She was seen by

[another physician] in surgical consultation. He felt that she had shock due to

left colon pathology. . . . [The other physician] felt the patient was more

stable, and that given signs suggesting peritonitis, and the possibility of

gangrenous bowel, surgical exploration of her abdomen should be performed.

Ms. Harvey was taken to surgery on 7/12/05. She was found to have an acute

surgical abdomen with peritonitis and colonic exudates secondary to

transcolonic inflammation from severe colitis. . . .

Post-operatively Ms. Harvey continued to do poorly. She was given

intravenous Vancomycin. Her acidosis worsened as did her blood pressure.

She became oliguric and was felt to need dialysis. For these reasons she was

transferred to Memorial Hermann Baptist Hospital-Beaumont on 7/13/05.

While at Memorial Hermann Baptist Hospital-Beaumont, Ms. Harvey was

treated aggressively. . . . By 7/17/0[5] she was felt to be hemodynamically

stable, but still in a septic state. On 7/17/0[5] she developed a fever, the

etiology of which was unclear. She was noted to begin making urine and

dialysis was discontinued. Her overall status was felt to be improved. . . .

On 7/22/05 dialysis was reinstituted due to recurrent electrolyte abnormalities.

The patient was noted to have an increasing WBC count. On 7/23/05 Ms.

Harvey was felt to be worsening, with the need for increasing oxygen,

decreasing urine output, respiratory failure. She was felt to have worsening

MOFS with the Adult Respiratory Distress Syndrome (ARDS). Her mental

status declined into a deep coma and at 1908 she expired.

Standards of Care

It is well established that MRSA is an increasingly common cause of soft

tissue infections in the United States. This organism has a propensity to cause

infections in the labial and gluteal areas. This organism is resistant to the

antibiotics used to treat cellulitis, which is more often caused by more sensitive

staphylococcal and streptococcal organisms. The presentation of an indurated,

erythematous, tender circumscribed lesion in the labia should have

immediately suggested the possibility of MRSA. In this setting the standard

of care was to suspect this organism and treat the patient with an appropriate

antibiotic. Dr. Moheb should have started an antibiotic regimen that would

have treated MRSA as well as other likely pathogens. The presentation was

so typical of MRSA, that the standard of care required Dr. Moheb to start

treatment with an appropriate antibiotic. This antibiotic could have been given

orally. Alternately, in a diabetic patient the argument could be made that

hospitalization and initiation of intravenous antibiotic was appropriate until

such time as it was clear that the infection was improving.

. . . Neither Augmentin nor Invanz have [sic] efficacy against MRSA and were

not appropriate antibiotic choices.

When culture data is obtained, it is the standard of care to follow-up on that

data. This ensures that the patient is treated with an appropriate antibiotic. It

also ensures that the patient is not exposed to an ineffective antibiotic. In the

latter case one is exposing the patient to the risks of antibiotic side effects

without any benefit. When a physician has obtained cultures in the office

setting, it is the standard of care to be certain that any consultant helping treat

the infection be [apprised] of the results. Thus, the standard of care required

that Dr. Moheb inform Dr. Packard as soon as the MRSA culture returned.

When treating any patient for an infection, one should closely follow the

patient's clinical response. In the case of Ms. Harvey, it was clear that she was

not improving. The standard of care would have necessitated Dr. Moheb and

Dr. Packard entertaining an alternate diagnosis or an alternate infectious agent,

resulting in changing the antibiotic.

. . . .

Violations of the Standards of Care

Upon initially evaluating Ms. Alberta Harvey, Dr. Moheb made the diagnosis

of cellulitis, despite the clinical picture being incompatible with cellulitis. He

did not consider MRSA nor did he treat the patient for this possibility. This

was a violation of the standard of care by Dr. Moheb.

. . . .

Dr. Moheb did not follow up on the culture he did in his office in a timely

fashion. Because of this the initiation of appropriate therapy was delayed for

at least 48 hours. This was a violation of the standard of care by Dr. Moheb.

From the time Ms. Harvey was admitted . . . on 6/23/05 until the Vancomycin

was initiated on 6/28/05 her labial lesion showed little, if any, improvement.

Despite this, consideration of alternate diagnoses was not reflected in the chart.

No antibiotic changes were made. This reflected a breach of the standard of

care by both Dr. Moheb and Dr. Packard.

. . . .

Causation

Ms. Harvey died as a result of severe MOFS resulting from severe Clostridium

difficile induced colitis. Inappropriate antibiotic treatment of her original

labial abscess led to the Clostridium difficile infection. Failure to timely

recognize the clostridium difficile infection as well as inappropriate

evaluation, diagnosis[,] and treatment of the complications of the Clostridium

difficile infection led to the development of severe MOFS with respiratory,

renal and metabolic and hemodynamic derangements ultimately causing her

demise.

By treating the original labial infection of Ms. Alberta Harvey with

inappropriate antibiotics, the labial infection was allowed to progress. This

prompted the initiation of more potent and broader spectrum antibiotic therapy.

These antibiotics were equally ineffective. Exposing Ms. Harvey to these

unnecessary and ineffective antibiotics put her at risk for becoming colonized

with Clostridium difficile. Ultimately she did become colonized and infected

with Clostridium difficile, which was a proximate cause of her death. Thus[,]

inappropriate evaluation and treatment of the original labial lesion by Dr.

Moheb and Dr. Packard was a proximate cause of the death of Ms. Harvey.

Had Dr. Moheb started appropriate treatment in his office it is probable that

the labial infection would have been improved or stabilized. Had she been

admitted to the hospital and started on intravenous antibiotics, the infection

would never have progressed as far as it did. This would have lessened her

time in the hospital, decreased her exposure to antibiotics, and in medical

probability prevented the Clostridium difficile colitis.

After appellees filed Berkowitz's supplemental report, appellants filed a motion to

dismiss. The trial court entered an order overruling appellants' objections to Berkowitz's

reports and denying their motion to dismiss, and appellants filed this appeal.

Issue One

In their first issue, appellants argue that the trial court erred by determining that

appellees' expert is qualified to render liability and causation opinions under Chapter 74. (3)

Specifically, appellants assert that since an expert must have training in the specific medical

care services the defendant was providing to the patient, Berkowitz may not opine

concerning the care provided by Moheb because Berkowitz is an infectious disease specialist

rather than a gynecologist.

With respect to his qualifications, Berkowitz's report provided as follows, in pertinent

part:

I am a board certified specialist in Internal Medicine and Infectious Diseases....

I am frequently called upon to treat patients with Methicillin Resistant

Staphylococcus Aureus (MRSA) infection. This bacterium can infect a

number of sites of the adult body. Specialists in Infectious Diseases, such as

me, are called upon to evaluate and treat infections in all of these sites. The

labia are not uncommon areas of involvement. As such I am quite familiar

with the evaluation and treatment of labial MRSA lesions. I do not believe

that the standard of care for treating such lesions differs substantively between

an Obstetrician/Gynecologist and an Infectious Diseases specialist.

I am knowledgeable as to the evaluation, treatment[,] and natural history of

patients with Clostridium difficile induced colitis. I am also knowledgeable

as to the causes and treatment of Multiple Organ Failure Syndrome (MOFS)

as well as its prognosis in patients. I am frequently consulted . . . to care for

patients with these illnesses.

A person who offers an opinion concerning a breach of the standard of care in a healthcare

liability claim must qualify as an expert under section 74.401 of the Civil Practice and

Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.401 (Vernon 2005). To offer

an opinion regarding whether a physician departed from accepted standards of care, a person

must be 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.

Id . § 74.401(a)(1)-(3) (emphasis added). Section 74.401(c) provides as follows:

(c) In determining whether a witness is qualified on the basis of training or

experience, the court shall consider whether, at the time the claim arose or at

the time the testimony is given, the witness:

(1) is board certified or has other substantial training or

experience in an area of medical practice relevant to the claim ;

and

(2) is actively practicing medicine in rendering medical care

services relevant to the claim.

Id . § 74.401(c) (emphasis added).

A physician need not be a practitioner in the same specialty as a defendant to qualify

as an expert. See Broders v. Heise , 924 S.W.2d 148, 153 (Tex. 1996). The plain language

of section 74.401 "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, 746 (Tex. App.--Houston [14th

Dist.] 1999, no pet.); see also McKowen v. Ragston , 263 S.W.3d 157, 162 (Tex. App.--Houston [1st Dist.] 2007, no pet.). Therefore, an expert is not required to "be able to

articulate the standard of care applicable to a specialty other than his own." McKowen , 263

S.W.3d at 162 (citing Blan , 7 S.W.3d at 746 -47 & n.3). "Under the Rules of Evidence, the

test is whether the offering party has established that the expert has knowledge, skill,

experience, training, or education on the specific issue before the court." Reddy v. Seale , No.

09-07-372 CV, 2007 WL 5011608 , at *3 (Tex. App.--Beaumont Mar. 20, 2008, no pet.)

(mem. op.). In Broders , the Supreme Court cited with approval Nunley v. Kloehn , in which

the district court held that "[t]he focus . . . is on the 'fit' between the subject matter at issue

and the expert's familiarity therewith, and not on a comparison of the expert's title or

specialty with that of the defendant." Broders , 924 S.W.2d at 153 (citing Nunley v. Kloehn ,

888 F.Supp. 1483, 1488 (E.D. Wis. 1995)).

In their brief, appellants argue that "[t]he treatment or medical care services at issue

. . . is the evaluation of a patient presenting with suspected cellulitis, vulvular abscess[,] or

some other labial process in a gynecological setting[,]" yet "Dr. Berkowitz neither practices

nor specializes in gynecology." Appellants also argue that McKowen is distinguishable

because, in that case, the physician continued to provide treatment to the patient, whereas

Moheb did not.

Berkowitz's second report states that he is a board-certified specialist in internal

medicine and infectious diseases, is engaged in the full-time practice of infectious diseases,

and is frequently called upon to treat patients with MRSA. Berkowitz's curriculum vitae

indicates that he has served as medical director of San Antonio Infectious Diseases

Consultants Infusion Center since 1997, and that he has been a partner at San Antonio

Infectious Diseases Consultants since 1993. Berkowitz also states in the report that the labia

are not an uncommon area for MRSA infections. In addition, Berkowitz asserts that the

standard of care for treating labial MRSA lesions does not differ substantively between a

gynecologist and a specialist in infectious diseases. Berkowitz explains in his report that

Alberta's "presentation was so typical of MRSA[] that the standard of care required Dr.

Moheb to start treatment with an appropriate antibiotic[,]" and that Augmentin is not an

effective antibiotic against MRSA. Furthermore, Berkowitz opines in the report that Moheb

violated the standard of care by initially diagnosing Alberta with cellulitis "despite the

clinical picture being incompatible with cellulitis."

Appellees' claim against Moheb clearly involves Moheb's alleged failure to properly

diagnose and treat Alberta's MRSA infection during her office visit. Therefore, we find that

appellants' proposed distinction between this case and the facts of McKowen to be without

merit. We hold that the trial court acted within its discretion in concluding that Dr.

Berkowitz's report, when considered as a whole, demonstrated his knowledge of accepted

standards for the diagnosis, care and treatment of the condition involved in this suit. See

Tex. Civ. Prac. & Rem. Code Ann. § 74.401 ; Broders , 924 S.W.2d at 153 ; McKowen , 263

S.W.3d at 162 ; Blan , 7 S.W.3d at 746-47 . Accordingly, we overrule issue one.

Issue Two

In their second issue, appellants argue that the trial court erred by denying their

objections to Berkowitz's report and their motion to dismiss because the report does not meet

the requirements of Chapter 74 and Palacios . We review a trial court's decision regarding

the adequacy of an expert report under an abuse of discretion standard. Am. Transitional

Care Ctrs. of Tex., Inc. 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 without reference to any

guiding rules or principles." Bowie Mem'l Hosp. v. Wright , 79 S.W.3d 48, 52 (Tex. 2002).

A trial court also abuses its discretion if it fails to analyze or apply the law correctly. Walker

v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

A plaintiff asserting a healthcare liability claim must provide each defendant physician

and healthcare provider with an expert report no later than the 120th day after filing suit.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a). The statute defines "expert report" as

a written report by an expert that provides a fair summary of the expert's

opinions as of the date of the report regarding applicable standards of care, the

manner in which the care rendered by the physician or health care provider

failed to meet the standards, and the causal relationship between that failure

and the injury, harm, or damages claimed.

Id . § 74.351(r)(6) (Vernon Supp. 2008). If a plaintiff furnishes the required report within the

time permitted, the defendant may file a motion challenging the report. Id . § 74.351( l ).

The statute provides that the trial 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)." Id . When determining whether the report represents a good-faith effort

to comply with the statutory requirements, the trial court's inquiry is generally limited to the

four corners of the report. Wright , 79 S.W.3d at 53 ; Palacios , 46 S.W.3d at 878 . To

constitute a good-faith effort, the report "must discuss the standard of care, breach, and

causation with sufficient specificity to inform the defendant of the conduct the plaintiff has

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

merit." Palacios , 46 S.W.3d at 875 . 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 [14h Dist.] 2001, no pet.); see also Tex. Civ. Prac. &

Rem. Code Ann. § 74.351 (a), (r)(6) (A claimant must provide each defendant with an expert

report that sets forth the manner in which the care rendered failed to meet the standards of

care and the causal relationship between that failure and the injuries claimed.). A report that

omits any of the statutory elements is not a good-faith effort. Palacios , 46 S.W.3d at 879 .

However, an expert report need not marshal all of the plaintiff's proof. Wright , 79 S.W.3d

at 52 .

Appellants contend that Berkowitz's report is inadequate because it fails to identify

the defendants by name; fails to identify duty, standard of care, breach of duty, and causation

as to each defendant; fails to provide a factual basis for Berkowitz's opinions and to link his

conclusions to the facts; fails to inform each defendant with sufficient specificity of the

conduct the plaintiffs have called into question; fails to discuss the elements of medical

negligence as to each defendant with sufficient specificity; and contains opinions that are

"speculative, conclusory, vague[,] and assume facts." (4) With respect to Moheb, Berkowitz's

report explains that Alberta presented to Moheb with an "indurated, erythematous, tender

circumscribed lesion [of] the labia" that "should have immediately suggested the possibility

of MRSA[;]" however, Moheb incorrectly diagnosed Alberta's condition as cellulitis despite

the clinical indications to the contrary and prescribed an ineffective antibiotic.

In addition, the report explains that Moheb violated the standard of care by failing to

consider MRSA as an alternate diagnosis and failed to provide appropriate treatment for

MRSA despite the fact that Alberta failed to improve. Furthermore, Berkowitz's report

states that Moheb's initial inappropriate evaluation and treatment of Alberta's labial lesion

allowed her infection to progress and caused her to be exposed to unnecessary and ineffective

antibiotics, leading to the Clostridium difficile which proximately caused her death.

According to Berkowitz, if Moheb had started appropriate treatment, Alberta's infection

would have improved or stabilized, and if Moheb had admitted Alberta to the hospital and

given her intravenous antibiotics, "the infection would never have progressed as far as it did.

This would have lessened her time in the hospital, decreased her exposure to antibiotics, and

in medical probability prevented the Clostridium difficile colitis."

Berkowitz's report named Moheb individually and discussed how he breached the

standard of care. See Doades , 94 S.W.3d at 671-72 . In addition, it was within the trial

court's discretion to conclude that the report adequately stated the standard of care. See

generally Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (r)(6). The report discussed standard

of care, breach, and causation with sufficient specificity to inform appellants of the conduct

appellees have called into question and to provide a basis for the trial court to conclude that

appellees' claims have merit. See Palacios , 46 S.W.3d at 875 ; Doades , 94 S.W.3d at 671-72 ;

Rittmer , 65 S.W.3d at 722-23 . Berkowitz's report explained the factual basis for his

statements and linked his conclusions to the facts. See Wright , 79 S.W.3d at 52 . Therefore,

we overrule issue two.

Issue Three

In their third issue, appellants argue that the trial court erred by considering

Berkowitz's supplemental report. According to appellants, because appellees filed

Berkowitz's supplemental report after receiving appellants' objections to the first report, the

trial court should not have considered the supplemental report. According to appellants, "the

Texas Legislature did not intend to allow a plaintiff unlimited opportunities to cure the

deficiencies in the expert report up until the 120-day deadline. Such an interpretation of the

statute is contrary to the plain language and intent of Chapter 74 and leads to an absurd

result."

As previously discussed, appellees filed Berkowitz's supplemental report within the

120-day deadline. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (a). The Supreme Court

recently held that when a plaintiff files a supplemental report within the 120-day deadline,

but after the defendant has objected to the sufficiency of the report, a trial court does not err

by considering the supplemental report. Leland v. Brandal , 257 S.W.3d 204, 205-06 (Tex.

2008). Appellants do not attempt to distinguish Leland ; in fact, neither their brief nor their

reply brief discusses Leland . We hold that the trial court did not abuse its discretion by

considering Berkowitz's timely-filed supplemental report. See id . Accordingly, we overrule

issue three.

Issue Four

In their fourth issue, appellants argue that the trial court erred by failing to dismiss

appellees' claims against GOWC because appellees "failed to provide a Chapter 74 expert

report as to [its] alleged negligence." Appellees' petition alleged that Moheb evaluated

Alberta at his office at GOWC. Appellees' petition does not explicitly state that appellees'

claims against GOWC are based upon respondeat superior ; however, it does allege that the

entity defendants acted through their agents, servants, or employees. Additionally, the

petition asserts that Moheb "practices medicine through" GOWC. Appellees' claims against

GOWC necessarily involve only GOWC's vicarious liability for the actions of Moheb, since

professional entities cannot practice medicine. See Young v. Pinto , No. 09-08-299 CV, 2008

WL 4998346 , at *8 (Tex. App.--Beaumont Nov. 26, 2008, no pet. h.) (mem. op.); Hiner v.

Gaspard , No. 09-07-240 CV, 2007 WL 2493471 , at *5 (Tex. App.--Beaumont Sept. 6, 2007,

pet. denied) (mem. op.); Univ. of Tex. Sw. Med. Ctr. v. Dale , 188 S.W.3d 877, 879 (Tex.

App.--Dallas 2006, no pet.); In re CHCA Conroe, L.P. , No. 09-04-453 CV, 2004 WL

2671863 , at *1 (Tex. App.--Beaumont Nov. 23, 2004) (orig. proceeding) (mem. op.);

Clements v. Conard , 21 S.W.3d 514, 522-23 (Tex. App.--Amarillo 2000, pet. denied).

"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." Gardner v. U.S.

Imaging, Inc., No. 08-0268, slip op. at 3 (Tex. Dec. 19, 2008) (per curiam). The conduct of

GOWC is not measured by a medical standard of care; rather, the basis of its liability

involves legal principles. See In re CHCA Conroe, L.P. , 2004 WL 2671863 , at *1.

Therefore, appellees were not required to provide an additional expert report as to GOWC.

See id .; see also Hiner , 2007 WL 2493471 , at *5. Accordingly, we overrule issue four and

affirm the trial court's judgment.

AFFIRMED.

STEVE McKEITHEN

Chief Justice

Submitted on October 9, 2008

Opinion Delivered January 15, 2009

Before McKeithen, C.J., Kreger and Horton, JJ.

1. For clarity, when it is necessary to refer to individual appellees, we will refer to them

by their first names.

2. Although Berkowitz called his second report a "supplement," it includes the full text

of his original report, as well as additional material.

3. Appellants' brief also discusses a report by a registered nurse, Sheri Innerarity,

regarding alleged breaches of the standard of care during the course of the nursing care

provided to Alberta; however, appellees do not discuss Innerarity's report in their brief.

Therefore, we presume that the appellees intend to rely solely on Berkowitz's report to

support the trial court's judgment, and we will not address Innerarity's report.

4. We will address the sufficiency of Berkowitz's reports as to GOWC in our

discussion of appellants' fourth issue.