Opinion

Opinion issued

December 29, 2011.

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-10-01116-CV

———————————

Vasudev Shenoy and Dario Zuniga , Appellant

V.

Penny Jean,

individually, and as wrongful death beneficiary of willie anne Jeane, deceased,

and on behalf of the estate of Willie Ann Jean, deceased, and on behalf of all

wrongful death beneficiaries of Willie Ann Jean, DECEASED, Appellee

On Appeal from the 151st District Court

Harris County, Texas

Trial

Court Case No. 2010-28302

MEMORANDUM

OPINION

In this interlocutory

appeal, [1]

Dr. Shenoy and Dr. Zuniga appeal the trial court’s orders denying their motion

to dismiss Penny Jean’s healthcare liability claim for failure to serve an

adequate expert report. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(a) (West 2011). Penny’s mother, Willie Ann Jean, died

approximately three weeks after gallbladder surgery as a result of hypoxic

encephalopathy. Dr. Zuniga performed the

surgery. Dr. Shenoy, a cardiologist,

cleared Jean for the surgery.

In two issues, Shenoy contends that the trial

court abused its discretion in denying his motion to dismiss because Jean’s

expert, Dr. Mazzei, an anesthesiologist, is not qualified to opine on the

applicable standard of care for a cardiologist, breach of that standard or

causation, and his report does not adequately address standard of care, breach,

or causation. In his sole issue, Zuniga

contends that the trial court abused its discretion because (1) Mazzei is not

qualified to offer an opinion on the applicable standard of care for a surgeon,

(2) the report does not address how Zuniga caused Willie Ann’s death beyond

mere conclusions, and (3) it is “impermissibly cumulative”—that is, it does not

adequately identify the particular breaches of the standard of care or

causation with respect to each separate defendant. We reverse and render an order

dismissing the claims against Shenoy and Zuniga.

Background

Mazzei’s expert report provides the

background facts in this case. The

medical records are not before us, and we accept the factual statements for the

limited purpose of this appeal. [2]

Willie Ann Jean, age 57, was taken by

ambulance to the emergency room of Doctor’s Hospital on February 15,2008,

complaining of abdominal pain, vomiting, chest pain of three hours’ duration,

and difficulty breathing. As part of her

admission, Willie Ann gave an extensive medical history that included diabetes,

hypertension, angina, surgery for a brain aneurysm, coronary artery disease,

chronic obstructive pulmonary disease, hypercholesterolemia, and a prior

myocardial infarction. Willie Ann

reported she had experienced abdominal and chest pain for years without

treatment. Based on a physical

examination and ultrasound, the emergency room physician, Dr. Mireles,

determined that she had polyps and diagnosed symptomatic gallstones in her

gallbladder. He recommended that she

undergo surgery to remove her gallbladder.

He ordered a surgical consultation and a cardiology consultation.

Shenoy, a cardiologist, saw her that

same day, and noted that Willie Ann had atwo- to three-year history of

epigastric and right upper quadrant abdominal pain as well as a history of a

previous myocardial infarction and a cereberovascular accident (i.e., a

stroke). Shenoy noted that Willie Ann

had suffered chest pain, accompanied by shortness ofbreath and sweating for

four to six hours earlier that day.

Willie Ann also had an abnormal electrocardiogram (EKG). Shenoy’s diagnosis was that Willie Ann had

sufferedan acute myocardial infarction, symptomatic gallstones, hypertension,

and diabetes.

Zuniga, a surgeon, performed the

surgical consultation three days after her initial admission, on February 18,

2008. Zuniga confirmed the presence of

gallstones, diagnosed inflammation of the gallbladder, and cleared Willie Ann

for surgery to remove her gallbladder the next day, February 19, subject to a

cardiology assessment. Dr. Shenoy saw

Willie Ann again on February 18. A

nuclear test was negative for ischemia.

Shenoy also ordered an EKG, the results of which are included in

Mazzei’s report but the significance of which are not explained. Shenoy cleared Willie Ann for the gallbladder

surgery.

Dr. Amin-Sankar, an anesthesiologist,

performed a preoperative anesthesia assessment on February 19. He noted Willie Ann’s past medical history,

including her acute myocardial infarction and abnormal EKG. Amin-Sankar cleared Willie Ann for surgery.

On February 19, 2008, Zuniga

performed the surgery. The surgery was

an “uneventful” procedure. After leaving

the post-anesthesia careunit (PACU), Willie Ann was to be sent to the intensive

care unit because she had fluctuating oxygen saturation levels, inadequate

ventilation, and shallowness of breath.

Shortly thereafter, she was transported back to the PACU and was placed

on a ventilator. According to Mazzei’s

report, Amin-Sankar prematurely extubated Willie Ann ten minutes later.Within a

few minutes, Willie Ann was in respiratory arrest. She received CPR and medications, and

Amin-Sankarreintubated her.

Thirty minutes later, Willie Ann was

returned to the ICU. According to

Mazzei’s report, Jean became “agitated” and had trouble with the

ventilator. She extubated herself and

suffered a second respiratory arrest.

She was re-intubated and given medications. An EEG the following day

showed possible hypoxic encephalopathy—brain damage caused by lack of

oxygen. A follow-up EEG the next day

also indicated hypoxic encephalopathy.

Mazzei’s report does not discuss whether the EEGs differentiate between

any damage caused by the first extubation and arrest and the second extubation

and arrest. Willie Ann was unresponsive to stimuli, including painful

stimuli. On February 25, Willie Ann was

transferred to another facility for long-term care. She died on March 5, 2008 due to the hypoxic

encephalopathy.

Penny filed a wrongful death medical

malpractice suit against Doctor’s Hospital, Mireles, Amin-Sankar, Shenoy, and

Zuniga. [3] Penny alleged that Shenoy and Zuniga were

negligent in clearing her mother for surgery.

Specifically, Penny alleged that there was no emergency or urgent reason

to remove her mother’s gallbladder and that her mother had experienced

abdominal and chest pain for years without treatment. In addition, Willie Ann had suffered an acute

myocardial infarction before the gallbladder surgery and had a history of

numerous health problems. Although she

was stable, her history created additional risks that made her a poor candidate

for surgery, and therefore Shenoy and Zuniga negligently cleared Willie Ann for

the surgery.

Penny timely served an expert report from

Mazzei, an anesthesiologist. [4] Mazzei’s report focused primarily on the

anesthesiologist, Amin-Sankar.

Concerning Shenoy and Zuniga, Mazzei stated that if Willie Ann “had not

undergone elective surgery on February 19, 2008, she would not have experienced

the respiratory arrests that resulted from her extubation and she would have,

in all probability, survived.”

Concerning Amin-Sankar, Mazzei’s report states, “In

reasonable medical probability, if Ms. Jean had not been prematurely extubated,

she would not have had the increased demands placed on her body which caused

her subsequent respiratory arrest, anoxic brain injury and death.” He further explained in his general discussion

of causation that the anesthesiologist should have been aware of the risks of

premature extubation. A fair reading of

Mazzei’s report is that the premature extubation was the immediate cause of

death:

The time it takes for a

patient’s anesthesia effect to lessen enough for them to be able to breathe

independently varies from patient to patient and is affected by a patient’s

physiology and underlying disease processes.

For a patient like Ms. Jean who had recently suffered a MI, it should have

been expected that it would take her a significant period of time before she

was capable of being extubated to breathe on her own. This was not taken into account nor was her

clinical picture when she was untimely extubated [by the

anesthesiologist]. This caused her to

suffer a respiratory arrest which further stressed Ms. Jean’s ability to

recover from surgery and lead to another respiratory arrest with anoxic

encephalopathy and death . . . . When

Ms. Jean extubated herself, the failure to address her increasing respiratory

distress resulted in a subsequent respiratory arrest causing the anoxic

encephalopathy which lead to her death.

Shenoy and Zuniga moved to dismiss,

asserting that the report was inadequate to them. The trial court granted Penny an opportunity

to amend the report. After receiving the

amended report, Shenoy and Zuniga again moved to dismiss due to inadequacies in

the report. The trial court denied the

motions to dismiss, and this interlocutory appeal followed.

Standard of Review

We review a trial court’s ruling on a

motion to dismiss a healthcare liability lawsuit pursuant to Chapter 74 of the

Texas Civil Practice and Remedies Code under an abuse of discretion standard. See Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios , 46 S.W.3d 873,

875 (Tex. 2001) (reviewing dismissal under predecessor statute, section 13(e)

of article 4590i); Runcie v. Foley ,

274 S.W.3d 232, 233 (Tex. App.—Houston [1st Dist.] 2008, no pet.). A trial court abuses its discretion if it

acts in an arbitrary or unreasonable manner without reference to guiding rules

or principles or if it clearly fails to analyze or apply the law

correctly. Runcie , 274 S.W.3d at 232 . 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). In making this evaluation, we

must look only at the information contained within the four corners of the

report. Bowie Mem’l Hosp. v. Wright ,

79 S.W.3d 48, 53 (Tex. 2002).

Adequacy of Dr. Mazzei’s

report

In

their respective appeals, Shenoy and Zuniga attack various aspects of the

adequacy of Mazzei’s report, asserting it fails to meet the requirements of section

74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 74.351(a).

I.

Chapter 74 expert report

requirements

Pursuant to section 74.351,

medical-malpractice plaintiffs must provide each defendant physician and health

care provider with an expert report or voluntarily nonsuit the action. Id.

If a claimant timely furnishes an expert report, a defendant may file a

motion challenging the report’s adequacy.

Id. 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( l ). The statute defines an

expert report as a written report by an expert that provides, as to each

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

report, regarding: (1) the applicable standards of care; (2) the manner in

which the care provided failed to meet the standards; and (3) the causal

relationship between that failure and the injury, harm, or damages

claimed. See id. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P. , 189 S.W.3d

855 , 858 - 59 (Tex. App.—Houston [1st

Dist.] 2006, no pet.).

Although the report need not marshal

all 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 ; Gray ,

189 S.W.3d at 859 . 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 the plaintiff has called into question, and, second, it

must provide a basis for the trial court to conclude that the claims have

merit. Scoresby v. Santillan , 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios ,

46 S.W.3d at 879 ). 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 . “‘[T]he expert must explain the basis of his

statements and link his conclusions to the facts.’” Wright , 79 S.W.3d at 52 (quoting 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 Scoresby , 346 S.W.3d at 556 (citing Palacios , 46 S.W.3d at

878 ).

II. Adequacy of report concerning causation

Within his second issue, Shenoy

contends that Mazzei’s report does not adequately address causation of Jean’s

injuries as a result of any negligence by Shenoy. As part of his sole issue, Zuniga similarly

argues that the report is inadequate in its statement of causation for his

alleged malpractice.

An expert report must

include a fair summary of the causal relationship between the defendant’s

failure to meet the appropriate standard of care and the injury, harm, or

damages claimed. Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(r)(6). An expert cannot

merely state his conclusions or “provide insight” about the plaintiffs’ claims,

but must instead “explain the basis of his statements to link his conclusions

to the facts.” Wright , 79 S.W.3d at

52 . In explaining causation, the report must explain how the physician’s

conduct caused the plaintiff’s injuries.

Id. at 53 .

A. A ssertions in Mazzei’s expert

report regarding causation

Mazzei’s report asserts that

the applicable standard of care breached by Shenoy included the responsibility

to consider all of Willie Ann’s co-morbidities because these conditions placed Willie

Ann “at an unacceptably high risk for complicationsfrom surgery and

anesthesia.” The report identifies two

risks from the surgery and anesthesia: (1) the stresses placed upon the

cardiovascular and respiratory system during surgery and anesthesia and (2) the

depression of the central nervous system and the resulting risk of

“experiencing cardiovascular and respiratory problems.” It also generally states that a

patient’smedical history may increase these risks. It does not, however, quantify or otherwise

describe the magnitude of risk for respiratory problems for a person undergoing

this surgery with normal health or compare that risk to the risk for a person

with pre-existing medical conditions like Willie Ann’s. According to the report, these risks are

addressed by intubating the patient “so the anesthesiologist can ventilate the

patients while their central nervous system is depressed” and that intubation

normally continues “until the patient is able to again breathe on [his] own.”

The report continues:

. . . . Although complications arose as Ms. Jean was extubated

followingsurgery, these complications occurred because of the medical

conditions that shouldhave lead Dr. Shenoy to conclude that Ms. Jean was not an

appropriate surgicalcandidate. If Ms. Jean had not undergone elective surgery

on February 19, 2008, shewould not have experienced the respiratory arrests

that resulted from her extubation andshe would have, in all probability,

survived.

In the “Causation” section,

the report further states:

Ms. Jean was a patient who was

still recovering from her MI who never shouldhave undergone elective surgery.

By continuing to recommend the gallbladder removalsurgery, clearing her for

surgery and performing surgery, Ms. Jean’s healthcareproviders breached and

violated the standards of care as set forth above andproximately caused her

death.

Finally, Mazzei states for a patient like Willie Ann “it

should have been expected that it would take her a significant period of time

before she was capable of being extubated to breathe on her own.”

B. Adequacy of the report concerning Shenoy

Mazzei’s report states that the medical conditions

that rendered Willie Ann unfit for surgery caused the complications that arose

when she was extubated (“these complications occurred because of the medical

conditions”). What he fails to do is

provide a factual underpinning for that conclusion explaining why or how this

occurred and whether it was all her medical conditions listed in his report or

her myocardial infarction in particular that made the risk unacceptable and

caused her respiratory arrest. These

omissions make the report conclusory and deficient for purposes of section

74.351.

1.

Expert reports cannot be conclusory

to satisfy section 74.351 .

An opinion on causation stated without the underlying facts is

conclusory. Jelinek v. Casas , 328 S.W.3d 526, 536 (Tex. 2010); Arkoma Basin

Exploration Co., Inc. v. FMF Assocs. 1990-A, Ltd. , 249 S.W.3d 380 , 389 n.32 (Tex. 2008). A conclusory opinion is not probative. City of

San Antonio v. Pollock , 284 S.W.3d 809, 818 (Tex. 2009); see Zamecnik

v. Indian Prairie Sch. Dist. No. 204 , 636 F.3d874, 881 (7th Cir.

2011) (stating that mere conclusions are useless to the court).

This rule is not a mere procedural hurdle. Juries — or in the case of expert

reports, judges — are often confronted with conflicting expert

testimony. One expert may testify that X

caused the plaintiff’s injuries while a different expert may testify that X did

not cause the plaintiff’s injuries. The

factfinder typically lacks the expertise necessary to form an opinion without

expert assistance — this is why expert testimony is admitted in the first

place. See Tex. R. Evid.

702. It is the expert’s explanation of

“how” and “why” causation exists that allows the factfinder to weigh the

credibility of the expert’s opinion and, when expert opinions conflict, to

decide which testimony to disregard. Cf. In re Christus Spohn Hosp. Kleberg ,

222 S.W.3d 434, 440 (Tex. 2007) (detailing reasons why it is essential that the

jury have access to the facts and data underlying an expert’s testimony in

order “to accurately assess the testimony’s worth.”). With respect to expert

reports in healthcare liability claims, the expert’s explanation is what allows

the trial court to determine whether the claim has merit. See Jelinek , 328 S.W.3d at 539 ; see

also Scoresby , 346 S.W.3d at 552 (observing that Legislature enacted expert

report requirement to elicit expert opinions at an early stage of the

litigation to allow the trial court to determine that a basis exists for

concluding that the claims have merit). Expert testimony that merely states a

final conclusion on an essential element of a cause of action — such as causation — without providing a factual

basis for that conclusion does not aid the jury in its role as factfinder but,

rather, supplants it. This, an expert

may not do. See Greenberg Traurig of N.Y., P.C.v. Moody , 161 S.W.3d 56, 97

(Tex. App.—Houston [14th Dist.] 2004, no pet.) (“Expert testimony is admissible

to aid the jury in its decision, but it may not supplant the jury’s

decision.”). Similarly, an expert report that merely asserts that a defendant

physician’s breach caused the plaintiff’s injury without providing a factual

basis does not provide the trial court with the information necessary to

evaluate the merits of the plaintiff’s claim. See Jelinek , 328 S.W.3d at 529 .

The

requirement that the expert’s opinion must not be conclusory applies not only

to trial testimony, but to expert reports required by section 74.351(a). See Jelinek , 328 S.W.3d at 539–40; Wright , 79 S.W.3d at 53 .In Jelinek , the Texas Supreme Court found

the trial court abused its discretion in denying a motion to dismiss because

the expert’s opinion on causation was conclusory. 328 S.W.3d at 539–40. The expert’s report

stated that “[the defendant’s] breach of the appropriate standard of care in

‘reasonable medical probability, resulted in a prolonged hospital course and

increased pain and suffering being experienced by [the plaintiff].’” Id. at

539 . The Court emphasized, “[T]he report

says nothing more regarding causation.” Id.

The Court faulted the report for offering no explanation “tying the

conclusion to the facts” or of “how and why the breach caused the injury based

on the facts presented.” Id. at 539–40. This is precisely the information missing

here: the how and the why.

In Gray ,

this court held that the expert report contained a conclusory statement

concerning causation. 189 S.W.3d at

860 . The report stated that “[t]he

failure to monitor and detect the malpositioned left knee resulted in a

dislocated left patella, severe pain and suffering, and subsequent medical

treatment.” Id. at 858 . Like the Supreme

Court in Jelinek , this court faulted

the causation opinion for failing to “convincingly tie the alleged departure

from the standard of care to specific facts of the case.” Id.

at 860.

2.

Mazzei’s report was

conclusory on the issue of causation

Mazzei’s causation opinion regarding Shenoy’s decision

to clear Willie Ann for surgery was conclusory. Although Mazzei’s report states

that anesthesia depresses the respiratory system and places stress on the

heart, the report does not state that Willie Ann’s history of heart problems or

other conditions somehow made her more likely to suffer respiratory arrest after

premature extubation than a person without those medical conditions. It does not state that her risks for the

complications that she experienced — respiratory arrest — were enhanced because of her

medical conditions. The report does

generally discuss why Willie Ann’s other conditions affected her suitability

for surgery, but does not link her medical conditions to the complication she

experienced, respiratory arrest. It

recognizes that a depressed central nervous system and the resulting risk of

respiratory problems are normal byproducts of anesthesia for even a person with

normal health. In other words,

Mazzei’s report shows that the surgery itself created the risk and does not

state how or why Willie Ann’s pre-existing conditions changed those risks

except in conclusory terms. The report also states that those risks can be addressed by leaving her

intubated for “a significant period of time” before extubation. Mazzei’s report

makes it clear that he believes that the premature extubation was the immediate

cause of her death.

A report may be sufficient if it states a chain of

events that begin with a health care provider’s negligence and end in a

personal injury. See Patel

v. Williams , 237 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2007,

no pet.); s ee

also Enghv. Reardon , No. 01-09-00017-CV, 2010

WL 4484022 , at *8 (Tex. App.—Houston [1st Dist.] Nov. 10, 2010, no pet.) (mem.

op.) . But neither case involved an event as

remote as that involved here.

In Patel , the

Fourteenth Court of Appeals held that an expert report sufficiently set forth

causation when it presented a chain of events beginning with an allegedly

negligent prescription and ending with the patient’s death. Patel , 237 S.W.3d at 905–06.

Patel prescribed Williams an anti-dementia drug. Id. at 903 . The report explained

that the drug was not FDA-approved for patients with Williams’s ailment and

that known side-effects of the drug included restlessness or a need to keep

moving. Id. Williams’s family withdrew consent for the

drug, but Patel continued to prescribe it.

Id. Williams was being fed via feeding tube, and

allegedly due to the restlessness from the drug, she removed the tube. Id. The

report identified nurses’ notes that described Williams as agitated and stated

that she kept pulling at her feeding tube. Id. The nursing staff improperly re-inserted the

tube, causing a small cut, which became infected because of the contents of the

feeding tube entering the cut. Id.

The cut developed into an abscess requiring multiple surgeries. Id. The report concluded that Williams’s death

was caused by the infection from the improperly re-inserted feeding tube. Id.

at 904 . The Fourteenth Court held that

the trial court did not abuse its discretion in determining the report was not

conclusory or speculative concerning causation.

Id. at 905–06.

The report in this case is distinguishable. The report identifies the alleged

breach—clearing Willie Ann for surgery with her medical history—as did the

report in Patel—prescribing an unapproved drug without consent. See id. But there the similarities end. In Patel ,

the report explained that a known side effect of the drug was restlessness, and

the restlessness caused Williams to become agitated and remove her feeding

tube. Id. Willie Ann likewise

became agitated and removed her breathing tube.

The report, however does not explain any connection between clearing

Willie Ann for surgery or her medical history and her agitation. While the report in Patel explained each step on the path of causation, the report in

this case does not. [5]

There were “many links in the chain of events” that

began with the pre-surgical clearance and ended with her death, but Mazzei

failed to explain and support each link.

While Mazzei explains how Willie Ann’s premature extubation prevented her

from “maintain[ing] the oxygenation in the blood,” increasing her risk for

respiratory arrest, he fails to explain what role her pre-existing medical

conditions played in her respiratory arrest. It is here that we part company

with the trial court and find that it abused its discretion. Mazzei does not

link the alleged negligence — clearing Jean for surgery —with

the premature

extubation except that one occurred before the other. That is not enough; it is only a statement of

“but for” causation. If that is all that

section 74.351 requires to demonstrate causation, almost any prior action taken

by a health care provider could be said to cause the ultimate outcome. For example, the referral by the emergency

room physician for the surgical consultation with Dr. Shenoy also was a cause

of Willie Ann’s death if all that is necessary is for an event to have preceded

the injury.

To establish cause in fact, Mazzei had to discuss why the act or omission was a substantial

factor in causing the injury and without which the harm would not have

occurred. W. Invs., Inc. v. Urena , 162 S.W.3d 547, 551 (Tex. 2005); see alsoTranscon. Ins. Co. v. Crump , 330

S.W.3d 211, 214 (Tex. 2010) (stating that plaintiff must prove “cause in

fact (or substantial factor)”); Ford

Motor Co. v. Ledesma , 242 S.W.3d 32, 46 (Tex. 2007) (stating that producing

cause requires that (1) the cause must be a substantial cause of the event in

issue and (2) it must be a but-for cause, namely one without which the event

would not have occurred). The report does not do so. Mazzei’s report does not

link facts from the alleged negligence in clearing her for surgery to Willie

Ann’s death. Willie Ann did not suffer a

cardiac arrest during or after the surgery; she suffered respiratory arrest and

only after a premature extubation.

Mazzei does not state that Willie Ann suffered any unusual respiratory

issue during the surgery itself; the surgical procedure was “uneventful.” And based on Mazzei’s report, it appears that

any patient — healthy or with a history of medical conditions — who is prematurely extubated

will not sufficiently “maintain the oxygenation in the blood” and therefore is

at risk for respiratory arrest. The mere

fact that Willie Ann was cleared for surgery before her death does not mean that

the clearance for surgery caused her death.

Jelinek , 328 S.W.3d at 533

(cautioning against the post hoc ergo

propter hoc fallacy, that is, reasoning that an earlier event caused a later

event simply because it occurred first).

A causal link can be too attenuated to satisfy the

causation requirement for an expert report.

See Gonzalez v. Sebile , No.

09-09-00363-CV, 2009 WL 4668892 , at *4 (Tex. App.—Beaumont Dec. 10, 2009, pet.

denied) (mem. op.). In Gonzalez , the physician was sued for

clearing the patient for surgery without obtaining a cardiologist consultation

despite an earlier open heart surgery. 2009

WL 4668892at *2.

According to the plaintiffs, the defendant anesthesiologist fell below

the standard of care by failing to disqualify the plaintiff as not fit for

surgery in part because of the risks of general anesthesia. Id. The court held that the report’s statement

that the plaintiff would not have been injured if he had not undergone surgery

in the first place was “too attenuated to set forth evidence of causation with

sufficient specificity to inform” the physician of the alleged misconduct and

to allow the trial court to conclude that the plaintiff’s claims had merit. Id. at

*3 . Mazzei’s report suffers from the

same defect.

While Mazzei’s report “provides insight” concerning

the claims surrounding Jean’s death, it does not link the facts of the decision

to clear her for surgery to the

conclusion that Shenoy’s alleged breach of the standard of care caused Jean’s

death. It does not, therefore, provide a

basis for the trial court to have concluded that causation was demonstrated for

Shenoy’s decision to clear Willie Ann for surgery. See

Palaciois , 46 S.W.3d at 879 (report must provide basis for concluding that

claims have merit). We conclude,

therefore, that the report is conclusory and inadequate with respect to

Shenoy. See Gray , 189 S.W.3d at 860 ; see

also Jelinek , 328 S.W.3d at 539–40 (finding report inadequate concerning

causation because it did not explain “how and why the breach caused the injury

based on the facts presented”).

We sustain this portion of Shenoy’s

second issue.

B. Adequacy of the report concerning Zuniga

Penny has not alleged, and Mazzei’s

report does not assert, that Zuniga negligently performed surgery; rather, the

surgery is described as “uneventful.” For

the same reasons that the report is inadequate as to causation for Shenoy, we

conclude that, with respect to Zuniga, the report fails to explain how and why Zuniga’s

clearing of Willie Ann for surgery caused her death, fails to demonstrate the

causal link necessary to have a meritorious claim, and is conclusory and

inadequate. See Gray , 189 S.W.3d at 860 ; Jelinek ,

328 S.W.3d at 539–40.

We sustain this portion of Zuniga’s

sole issue. [6]

Conclusion

We reverse and render an order dismissing the claims

against Shenoy and Zuniga.

Harvey

Brown

Justice

Panel consists of Chief

Justice Radack and Justices Sharp and Brown.

Sharp, J., dissenting. Dissent to follow.

[1] See Tex. Civ. Prac. & Rem.

Code Ann. § 51.014(a)(9) (West 2011).

[2] See Bowie

Mem’l Hosp. v. Wright , 79

S.W.3d 48, 53 (Tex. 2002) (review of Chapter 74 report is limited to four

corners of report).

[3] Only Shenoy and Zuniga are parties to

this appeal.

[4] See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(a).

[5] The report in this case is similarly

distinguishable from the report in Engh . In Engh ,

the report identified the alleged breach—placing a surgical clip on the ureter

during surgery. 2010 WL 4484022 at

*6. The report also explained the

consequences of a clipped ureter.

Specifically, the report detailed how damage to and, eventually, loss of

the kidney would result from clipped ureter.

Id. Thus, this court found the report adequate,

although Engh saw multiple other doctors and several months passed after his

surgery and before he lost his kidney. Id. at *10 . The report explained how the alleged breach

caused the loss of Engh’s kidney, while the report here contains no explanation

of how clearing a patient with a history like Willie Ann’s causes premature

extubation, self-extubation, or the eventual death of the patient.

[6] Because

we have sustained Shenoy’s second issue in part and Zuniga’s sole issue in

part, we do not address the other arguments raised by the parties. See Tex. R. App. P. 47.1.