# Nancy Carmen Curnel and Ronald Curnel v. Houston Methodist Hospital-Willowbrook and Michael Esantsi

> Texas Court of Appeals, 1st District (Houston) · August 16, 2018 · 562 S.W.3d 553

URL: https://www.frixlaw.com/law-library/cases/4304757

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** August 16, 2018
- **Citations:** 562 S.W.3d 553
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4304757

## How later opinions describe it (automated extraction)

- holding that “a health care provider’s breach is a foreseeable cause of the plaintiff’s injury if a health care provider of ordinary intelligence would have anticipated the danger caused by the negligent act or omission”
- stating breach is foreseeable cause of plaintiff’s injury if health care provider of ordinary intelligence would have anticipated danger caused by negligent act or omission
- holding the trial court abused its discretion in denying motion for extension to cure deficient expert reports and motion for reconsideration
- stating expert does not have to anticipate or rebut defensive theories defendant might assert in response to his causation opinion

## Opinion text

Opinion issued August 16, 2018

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-17-00088-CV
———————————
NANCY CARMEN CURNEL AND RONALD CURNEL, Appellants
V.
HOUSTON METHODIST HOSPITAL-WILLOWBROOK AND MICHAEL
ESANTSI, Appellees

On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2016-36453

OPINION ON REHEARING1

1
Appellants, Nancy and Ronald Curnel, have filed a motion for rehearing of our
October 31, 2017 memorandum opinion and judgment. We grant the motion,
withdraw our memorandum opinion and judgment of October 31, 2017, and issue
this opinion and a new judgment in their stead.
This is an interlocutory appeal from the trial court’s order dismissing health

care liability claims for failure to serve adequate expert reports. See TEX. CIV.

PRAC. & REM. CODE §§ 51.014(a)(9), 74.351(a), (b).

According to the expert reports, Nancy Curnel presented to the emergency

room of Houston Methodist Hospital-Willowbrook with elevated liver enzymes

caused by a recently prescribed antibiotic. Curnel was examined by a hospitalist,

Dr. Michael Esantsi, who misdiagnosed her with viral hepatitis; ordered that she

continue taking her current medications, including the antibiotic that was causing

her elevated liver enzymes; and admitted her to the hospital. Once admitted,

Curnel continued to receive the hepatotoxic antibiotic, and she began to receive

another well-known hepatotoxic medication, acetaminophen, again by an order of

Esantsi. On the third day of her hospitalization, Curnel was examined by a

gastroenterologist, who noted that she might be suffering from drug-induced liver

injury. He ordered a biopsy of Curnel’s liver to test for other potential causes.

Later that same day, another hospitalist discontinued the antibiotic. Curnel’s liver

enzymes began to improve. Curnel’s physicians did not cancel or postpone the

biopsy. On the morning of the fifth day of Curnel’s hospitalization, a blood clotting

test ordered by Esantsi to clear Curnel for the biopsy returned as normal, and a

radiologist performed the biopsy as scheduled. During the biopsy, the radiologist

nicked Curnel’s artery, causing her severe injuries.

2
Curnel and her husband, Ronald, asserted health care liability claims against

Esantsi and Methodist, among others. They served a series of expert reports from a

gastroenterologist, Dr. Todd Sheer, and a registered nurse, Julie Fomenko. Esantsi

and Methodist both filed motions to dismiss. The trial court found that the expert

reports were deficient as to both Esantsi and Methodist, denied the Curnels’

request for an extension to cure the deficiencies, and dismissed the Curnels’ claims

with prejudice. The Curnels filed a motion for reconsideration, supported by

amended expert reports, which the trial court denied as well.

In three issues, the Curnels contend that the trial court abused its discretion

by (1) granting Esantsi’s and Methodist’s motions to dismiss, (2) denying their

request for an extension to cure, and (3) denying their motion for reconsideration.

We hold that the expert reports were deficient but may be curable. Therefore, we

reverse the trial court’s order dismissing the Curnels’ claims against Esantsi and

Methodist and remand the case for further proceedings.

Factual Background

The expert reports of Sheer and Fomenko provide the background facts in

this case. There are five reports from Sheer (one original and four supplemental)

and three reports from Fomenko (one original and two supplemental). We accept

the expert reports’ factual statements for the limited purpose of this appeal and do

not address the merits of the Curnels’ claims. See Bowie Mem’l Hosp. v. Wright,

3
79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (review of Chapter 74 report is limited

to four corners of report).

Curnel is prescribed an antibiotic that can cause elevated liver enzymes

On October 4, 2015, Nancy Curnel presented to a local walk-in clinic “with

a complaint of two days of subjective fever, rash, chronic cough, generalized pain,

nasal congestion, dysuria, and diarrhea.” At the time, Curnel was on “multiple

medications,” including “acyclovir, alprazolam, duloxetine, hydrochlorothiazide,

lisdexamfetamine, levothyroxine, zolpidem, and nasonex.” Curnel was examined

by a nurse practitioner, who diagnosed Curnel with a urinary tract infection and

prescribed her the antibiotic nitrofurantoin, “100mg twice a day for 7 days.”

Nitrofurantoin (also known as Macrodantin or Macrobid) is known for potential

hepatotoxic effects and can cause drug-induced liver injury (DILI).

Curnel presents to the Methodist ER with elevated liver enzymes

Four days later, on Thursday, October 8, Curnel presented to the Methodist

emergency room. According to Dr. Sheer’s expert reports, Curnel had been sent to

the ER “by her primary medical provider to find out why recent blood work

identified abnormal liver tests (hepatitis).” Curnel’s “medical history was negative

for drug or alcohol abuse and chronic liver disease.” “She was taking several

medications for longstanding medical conditions, with no history that these

medications had caused hepatotoxicity in the past.” The only “new drug” she was

4
taking was the nitrofurantoin. After she began taking nitrofurantoin, “liver function

studies performed by her primary care provider demonstrated elevated values.”

Curnel told the nursing staff that she had been sent to the ER by her primary

care physician because recent blood work indicated that she had elevated liver

enzymes. An ER nurse took Curnel’s medical history, noting that “Curnel had

recently started nitrofurantoin and was then referred to the hospital for evaluation

of elevated liver enzymes.” However, there is no documentation that the nurse

evaluated Curnel’s “current medications, including nitrofurantoin,” for “potential

hepatotoxicity.”

After the nurse took Curnel’s medical history, Curnel was examined by an

emergency medicine physician, Dr. Scott Wiesenborn. Wiesenborn noted that

Curnel had recently begun taking nitrofurantoin and had been referred to the ER

for elevated liver enzymes. Wiesenborn ordered that Curnel’s liver enzymes be

tested, and the results confirmed that several of her liver enzymes were abnormally

high, including her alanine transaminase (ALT), aspartate transaminase (AST), and

alkaline phosphatase (ALP). Wiesenborn diagnosed Curnel with a fever and

“elevated liver function tests/probable acute hepatitis,” although he did not specify

whether it was “drug, viral, autoimmune, etc.”

5
Curnel is hospitalized

Wiesenborn called the on-duty hospitalist, Dr. Michael Esantsi, to determine

whether to admit Curnel for hospitalization. According to Sheer’s expert reports,

Esantsi’s “history and physical” was “not significantly different from the one

performed in the ER” by Wiesenborn. Esantsi documented that Curnel had started

nitrofurantoin, but he did “not list this in his Medications section.” He diagnosed

Curnel with “abnormal liver function tests,” specifying that the probable cause was

“viral-induced hepatitis.” According to Sheer, “[d]rug-induced liver injury [was]

not considered in the history and physical,” and Esantsi’s “plan include[d]

continuing current regular home medications.” Esantsi ordered that Curnel take

“nitrofurantoin 100 mg capsule oral two times daily” and that she undergo a

gastrointestinal consultation.

One of the nurses documented Esantsi’s order concerning Curnel’s

medications, “which included nitrofurantoin SR (Macrobid) 100 mg capsule oral

two times daily.” There is no documentation that the nurses ever developed “a plan

for an evaluation for the hepatotoxic potential of the medications, and there is no

documentation elsewhere in the medical record that such evaluation was

completed.”

That afternoon, Curnel was transferred from the ER to the medical-surgical

unit, where she was examined by a gastroenterologist, Dr. Steven Ugbarugba.

6
Ugbarugba’s consultation notes made “no mention” of Curnel “starting

nitrofurantoin recently” and “omit[ted] a list of her medications.” Ugbarugba

performed a number of tests, which ruled out a number of potential causes of

Curnel’s elevated liver enzymes.2 Ugbarugba did not note nitrofurantoin as a

potential cause of Curnel’s elevated liver enzymes. Again quoting from Sheer’s

reports, there is “no documentation that drug-induced liver injury [was]

considered” by Ugbarugba at that time.

Later that evening, Curnel received a dose of nitrofurantoin, which was

“dispensed from the pharmacy” and “administer[ed]” by one of the nurses.

On the morning of Friday, October 9, Curnel’s liver enzymes were tested

again. The test results showed a “slight increase” in both her ALT and AST.

Curnel underwent additional testing, which indicated that she did not have viral

hepatitis but was suffering from DILI instead. A complete blood count (CBC)

revealed that Curnel had eosinophilia, a condition that is “indicative” or

“suggestive” of DILI.

According to Sheer, Esantsi’s notes indicate that, when he saw Curnel again

that day, he “repeat[ed] the running diagnosis of probable viral hepatitis, despite

negative test results,” with “no documentation that drug-induced liver injury [was]

2
Specifically, Ugbarugba ruled out autoimmune hepatitis, viral hepatitis, lupus
hepatitis, celiac disease, Epstein-Barr virus, Parvovirus PCRs, primary biliary
cholangitis, and ulcers.

7
considered.” At the nurses’ request, Esantsi ordered that Curnel begin to take

acetaminophen, “another well-known hepatotoxic medication.” A nurse

administered the medication to Curnel that afternoon.

That evening, Curnel received another dose of nitrofurantoin, “dispensed

from the pharmacy” and “administer[ed]” by another nurse.

On the morning of Saturday, October 10, Curnel received yet another dose

of nitrofurantoin. Her liver enzymes were tested again, and the results showed

increases in her ALT and ALP, and a slight decrease in her AST, which

nevertheless remained abnormally high. The results also showed a “slight rise” in

her bilirubin.

Later that day, she was examined again by Dr. Ugbarugba, who ordered that

Curnel undergo a liver biopsy. Ugbarugba wrote a progress note, which

“reaffirm[ed]” the general diagnosis of “acute hepatitis” but added that the etiology

remained “unclear” and that there was a “possibility” that the hepatitis was

“medication-induced.” Sheer’s expert reports state that this is the “first

documentation” of a medical provider considering DILI as a potential cause of

Curnel’s elevated liver enzymes. Ugbarugba “recommend[ed] holding Acyclovir,

Vyvance, and Tylenol specifically,” and he made “a general suggestion to ‘hold

hepatotoxic medications.’”

8
Later that afternoon, Curnel was examined by another physician, Dr. Yamini

Naygandhi, who was “covering for Esantsi.” Naygandhi noted that Curnel might

be suffering from “medication related hepatitis” (i.e., DILI) instead of “viral”

hepatitis and ordered a review of Curnel’s medications “to find out what [was]

causing [her] elevated LFT [liver function tests].” She also ordered that Curnel

discontinue nitrofurantoin.3

By Sunday, nitrofurantoin was “no longer on [Curnel]’s patient medication

list and was not administered.” Her bilirubin and ALP increased, but her ALT and

AST decreased.

Curnel’s artery is nicked during her liver biopsy

On the morning of Monday, October 12, the day of Curnel’s scheduled liver

biopsy, Curnel’s enzymes showed “further improvement.” Her bilirubin began to

decrease, her AST continued to decrease, and her ALT and ALP underwent “non-

significant changes.”

At 9:00 a.m., Curnel was examined for a third time by Ugbarugba. His

progress note contained the “exact” same “assessment from the day prior” except

that it noted, “Liver bx today.” “A pre-procedure prothrombin time/INR ordered by

3
None of the physicians specifically ordered that Curnel discontinue
acetaminophen.

9
Dr. Esantsi return[ed] as normal (this was the first time checked since

presentation).”4

At 10:30 a.m., a radiologist, Dr. Mark Brodie, performed the biopsy. He

obtained two “cores,” which showed that “the liver function abnormalities were

due to medication effects.” During the biopsy, Brodie nicked Curnel’s artery,

causing severe injuries. Curnel required multiple blood transfusions, medications

to maintain circulation, mechanical ventilation, prolonged resuscitation, and

extended ICU care. According to Sheer, Curnel “will have a slow and painful

recovery.”

Procedural History

The Curnels asserted health care liability claims against Esantsi and

Methodist, among others. The Curnels served Esantsi and Methodist with a series

of expert reports from Sheer and Fomenko. Sheer’s reports addressed both Esantsi

and Methodist, while Fomenko’s addressed only Methodist.

Esantsi and Methodist filed objections and motions to dismiss for failure to

serve adequate expert reports. The Curnels responded that the reports were

adequate. They requested that the trial court deny the motions to dismiss or,

alternatively, grant them a 30-day extension to cure any deficiencies in the reports.

4
“A prothrombin time test measures how quickly your blood clots.” Prothrombin
time test, MAYO CLINIC (May 10, 2018), https://www.mayoclinic.org/tests-
procedures/prothrombin-time/about/pac-20384661.

10
The trial court heard the motions to dismiss and found that the combined

expert reports of Sheer and Fomenko were deficient as to both Esantsi and

Methodist. The trial court sustained Esantsi’s and Methodist’s objections, denied

the Curnels’ request for a 30-day extension to cure, and dismissed the Curnels’

claims with prejudice.

The Curnels filed a motion for reconsideration, supported by amended

expert reports. The trial court denied the motion, and the Curnels appealed.

Motions to Dismiss

In their first issue, the Curnels contend that the trial court abused its

discretion in granting Esantsi’s and Methodist’s motions to dismiss for failure to

serve adequate expert reports.

A. Applicable law and standard of review

Under the Medical Liability Act, a plaintiff asserting health care liability

claims must timely serve each defendant physician and health care provider with

one or more expert reports and a curriculum vitae of each expert whose opinion is

offered to substantiate the merits of the claims. TEX. CIV. PRAC. & REM.

CODE § 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—

Houston [1st Dist.] 2015, no pet.). The expert report must provide a “fair

summary” of the expert’s opinions regarding the (1) applicable standards of care,

(2) manner in which the care rendered by the physician or health care provider

11
failed to meet the standards, and (3) causal relationship between that failure and

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

CODE § 74.351(r)(6). “No particular words or formality are required, but bare

conclusions will not suffice.” Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.

2011). Instead, the report must explain the basis of the expert’s statements and link

the expert’s conclusions to the facts of the case. Jelinek v. Casas, 328 S.W.3d 526,

539 (Tex. 2010).

For standard of care and breach, the expert report must explain what the

physician or health care provider should have done under the circumstances and

what the physician or health care provider did instead. Am. Transitional Care Ctrs.

of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). For causation, the expert

report must explain how and why the physician’s or health care provider’s breach

proximately caused the plaintiff’s injury. Columbia Valley Healthcare Sys., L.P. v.

Zamarripa, 526 S.W.3d 453, 459–60 (Tex. 2017).

Proximate cause has two components: (1) cause-in-fact and

(2) foreseeability. Id. at 460. A physician’s or health care provider’s breach was a

cause-in-fact of the plaintiff’s injury if the breach was a substantial factor in

bringing about the harm, and absent the breach (i.e., but for the breach) the harm

would not have occurred. Id. Even if the harm would not have occurred absent the

defendant’s breach, “the connection between the defendant and the plaintiff’s

12
injuries simply may be too attenuated” for the breach to qualify as a substantial

factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (per

curiam) (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)).

A breach is not a substantial factor if it “does no more than furnish the condition

that makes the plaintiff’s injury possible.” Id. A physician’s or health care

provider’s breach is a foreseeable cause of the plaintiff’s injury if a physician or

health care provider of ordinary intelligence would have anticipated the danger

caused by the negligent act or omission. See Price v. Divita, 224 S.W.3d 331, 336

(Tex. App.—Houston [1st Dist.] 2006, pet. denied).

The plaintiff may serve reports of separate experts regarding different

physicians or health care providers or regarding different issues arising from the

conduct of a single physician or health care provider. TEX. CIV. PRAC. & REM.

CODE § 74.351(i). However, only a qualified physician may give opinion testimony

about the causal relationship between the claimed injury, harm, or damages and the

alleged departure from the applicable standard of care. See id. § 74.351(r)(5)(C).

The expert report is not required to prove the plaintiff’s case but only to

provide notice of the conduct forming the basis of the plaintiff’s claim. Gracy

Woods I Nursing Home v. Mahan, 520 S.W.3d 171, 189 (Tex. App.—Austin 2017,

no pet.). The report “need not anticipate or rebut all possible defensive theories that

may ultimately be presented” in the case. Owens v. Handyside, 478 S.W.3d 172,

13
187 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Nor must the report “rule

out every possible cause of the injury, harm, or damages claimed.” Baylor Med.

Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278 S.W.3d 552, 562

(Tex. App.—Dallas 2009, no pet.).

In reviewing the adequacy of an expert report, a trial court may not consider

an expert’s credibility, the data relied upon by the expert, or the documents that the

expert failed to consider at this pre-discovery stage of the litigation. See Mettauer

v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st Dist.] 2010, no pet.);

Gonzalez v. Padilla, 485 S.W.3d 236, 245 (Tex. App.—El Paso 2016, no pet.).

Instead, the trial court must limit its review to the “four corners” of the expert

report and, when the question of adequacy hinges on the expert’s qualifications,

the “four corners” of the expert’s curriculum vitae. Mangin, 480 S.W.3d at 706.

The statute’s purpose is not to determine the merits of the claim but to rule

out frivolous lawsuits at the onset of litigation, before the parties have conducted

full discovery. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 502 (Tex.

2015); Mangin, 480 S.W.3d at 706. As we have explained:

The requirement to serve an expert report arises at the outset of
litigation and before the opportunity for the plaintiff to engage in
significant discovery, including taking oral depositions of the
defendants. As such, the statute itself contemplates that the amount
and quality of evidence available at the time of drafting the expert
reports will be less than that available at trial on the merits or even the
summary-judgment stage.

14
Mangin, 480 S.W.3d at 713 (citations omitted). Thus, the requirements of the

statute have been variously described as a “lenient standard,”5 “low threshold,”6

and “relatively low bar.”7

If the plaintiff “fails to timely serve an expert report, then on the affected

health care provider’s motion the trial court must dismiss the pertinent health care

liability claim with prejudice and award attorney’s fees.” Baty v. Futrell, 543

S.W.3d 689, 692 (Tex. 2018) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)).

“However, if the motion challenges the adequacy of an otherwise timely report, the

trial court may grant the motion ‘only if it appears to the court, after hearing, that

the report does not represent an objective good faith effort to comply with the

[Act’s] definition of an expert report.’” Baty, 543 S.W.3d at 692–93 (quoting TEX.

CIV. PRAC. & REM. CODE § 74.351(l)).

A report qualifies as an objective good faith effort to avoid dismissal if it

discusses each element with sufficient specificity that it (1) informs the defendant

of the specific conduct the plaintiff questions and (2) provides a basis for the trial

5
Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011).
6
Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012) (Hecht, J., concurring in part
and dissenting in part) (“An expert report, as we have interpreted it, is a low
threshold a person claiming against a health care provider must cross merely to
show that his claim is not frivolous.”).
7
Baty v. Futrell, 543 S.W.3d 689, 698 (Tex. 2018) (Johnson, J., dissenting)
(describing medical expert report requirements as interpreted by majority).

15
court to conclude that the plaintiff’s claims have merit. Miller v. JSC Lake

Highlands Operations, LP, 536 S.W.3d 510, 513 (Tex. 2017) (per curiam). In

determining whether an expert report constitutes an objective good faith effort to

address each element, “a trial court may not draw inferences; instead, it must

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

report.” Cornejo v. Hilgers, 446 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.]

2014, pet. denied); see Baty, 543 S.W.3d at 693.

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

claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d

140, 142 (Tex. 2015) (per curiam). Under this standard, we “defer to the trial

court’s factual determinations if they are supported by evidence, but review its

legal determinations de novo.” Id. “A trial court abuses its discretion if it rules

without reference to guiding rules or principles.” Id.

B. Adequacy of expert reports on Esantsi

The Curnels supported their claim against Esantsi with expert reports from

Sheer. The trial court found that Sheer’s reports were deficient on all three

elements.

1. Sheer’s opinions on elements of standard of care and breach

We begin by considering whether Sheer’s reports provide adequate opinions

on the first two elements: standard of care and breach. In his reports, Sheer

16
explains that the standard of care required Esantsi to take certain actions and to

refrain from taking others throughout the course of Curnel’s treatment at

Methodist.

Sheer writes that, as Curnel’s “primary physician” at the hospital, Esantsi

was “responsible” for the “decision to admit and discharge” her. At the “most

basic” level, a hospitalist like Esantsi must “understand the effect of medications

on a patient, especially when evaluating liver function.” When a patient presents

with elevated liver enzymes, “medications should be at the top of the list of

potential causes, which is especially true when the patient has recently initiated a

course of a frequently implicated agent such as nitrofurantoin.” And, Sheer

continues, when a patient’s elevated liver enzymes are “drug-induced,” a liver

biopsy is “rarely helpful.”

According to Sheer, when Curnel presented to the hospital after having

recently initiated an antibiotic well-known for its hepatotoxic potential, the

standard of care required Esantsi to “evaluate the hepatotoxic potential” of

Curnel’s medications; “recognize drug-induced liver injury as the probable cause

of [her] elevated liver enzymes”; “discontinue the offending drug,” nitrofurantoin;

refrain from ordering other hepatotoxic medications; and “discharge her to be

followed as an outpatient with her primary care physician to confirm normalization

of the liver tests on serial lab testing.” Sheer explains that Esantsi breached this

17
standard by failing to take any of these steps. Esantsi failed to evaluate the

hepatotoxic potential of her medications, recognize DILI as the probable cause of

her elevated liver enzymes, discontinue the antibiotic, refrain from ordering other

hepatotoxic medication, and discharge her for outpatient monitoring. Instead,

Esantsi misdiagnosed Curnel with probable viral hepatitis, ordered that she

continue to take nitrofurantoin and begin to take hepatotoxic acetaminophen, and

admitted her for hospitalization and “unnecessary testing.”

After Curnel was admitted for hospitalization, Sheer explains, Esantsi

continued to be responsible for deciding when to discharge her, and the standard of

care required him to recognize that a liver biopsy was not “warranted” or

“justified” under the circumstances.8 Sheer further explains that Esantsi breached

this standard by “maintaining [Curnel’s] admission to the hospital for the biopsy”

and ordering a pre-procedure prothrombin time test “in preparation of the liver

biopsy.”

Thus, in his reports, Sheer explains in detail what he believes the standard of

care required Esantsi to have done under the circumstances and what Esantsi did
8
Sheer explains: “A physician must have evidence that the information to be
obtained from a liver biopsy warrants the risk before the procedure is performed.
That did not exist in this case. A liver biopsy is most often performed for
evaluation of abnormal liver tests once medication review, thorough history and
physical examination, and complete blood testing has been performed and are not
indicative of a cause. Liver biopsy is not indicated for a stable patient without
evidence of acute liver failure (which Ms. Curnel did not have) when the workup
(including medication review) is incomplete.”

18
instead. See Palacios, 46 S.W.3d at 880. We hold that Sheer’s reports provide

adequate opinions on the standard of care applicable to Esantsi and the manner in

which the care rendered by Esantsi failed to meet that standard. See TEX. CIV.

PRAC. & REM. CODE § 74.351(r)(6).

2. Sheer’s opinion on element of causation

We next consider whether Sheer’s reports provide an adequate opinion on

the third element: causation. To show causation, Sheer explains a chain of events

that begins with Esantsi’s initial breaches—Esantsi’s failure to evaluate Curnel’s

medications for hepatotoxic potential when she first presented, to diagnose her

with DILI, and to discharge her for outpatient monitoring. He instead

misdiagnosed her with viral hepatitis, ordered that she continue to take the

contraindicated antibiotic and another hepatotoxic medication, and improperly

admitted her for hospitalization and unnecessary testing. The chain of the events

then continues to Esantsi’s subsequent breaches—Esantsi’s act and omissions in

continuing to misdiagnose Curnel with viral hepatitis, maintaining her admission to

the hospital, and ordering the prothrombin time test in preparation for the biopsy.

And the chain ends with the unwarranted biopsy taking place as scheduled.

The chain of events leading up to Curnel’s injuries includes many other acts

by many other actors. These actors notably include Ugbarugba, who ordered the

liver biopsy even though he considered DILI a potential cause of Curnel’s elevated

19
liver enzymes and Curnel showed improvement after nitrofurantoin was

discontinued, and Brodie, who actually performed the biopsy and nicked Curnel’s

artery.

An event that starts a chain of events can be too attenuated from an injury to

cause it. See Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 330 (Tex. 2008)

(holding that medical providers’ “negligence was too attenuated from the [harm] to

have been a substantial factor in bringing it about”); Shenoy v. Jean, No. 01-10-

01116-CV, 2011 WL 6938538, at *9 (Tex. App.—Houston [1st Dist.] Dec. 29,

2011, pet. denied) (mem. op.) (“A causal link can be too attenuated to satisfy the

causation requirement for an expert report.”). It is not enough that one event

occurred before the other; that is only evidence of but-for causation. Shenoy, 2011

WL 6938538, at *9; see Jelinek, 328 S.W.3d at 533 (“Care must be taken to avoid

the post hoc ergo propter hoc fallacy, that is, finding an earlier event caused a later

event merely because it occurred first.”). Rather, the event must have been a

substantial factor in bringing about the harm. Zamarripa, 526 S.W.3d at 460. And

an event is not a substantial factor if it is “too attenuated” from the harm or “does

no more than furnish the condition that makes the plaintiff’s injury possible.’”

Walters, 530 S.W.3d at 149 (quoting Allbritton, 898 S.W.2d at 776).

Esantsi’s initial breaches—the breaches he committed when Curnel first

presented to Methodist—are too attenuated from Curnel’s injuries to be considered

20
a substantial factor in bringing those injuries about. It is true that, if Esantsi had

followed the identified standard of care when determining whether to admit

Curnel—had he recognized that Curnel was likely suffering from DILI caused by

the recently-prescribed nitrofurantoin, discontinued the nitrofurantoin, and

discharged her for outpatient monitoring—then Curnel’s liver would have never

been biopsied, and her injuries would have never occurred. Nevertheless, Esantsi’s

initial breaches, which occurred days before the biopsy and before she was even

admitted to the hospital, did “no more than furnish the condition” that made

Curnel’s injury “possible.” Id. That is, as a result of Esantsi’s initial breaches,

Curnel was admitted for hospitalization, which made it possible for Ugbarugba to

order the biopsy and for Brodie to perform the biopsy, among other causal links in

the chain. Given the numerous different acts by other physicians and nurses during

the multiple days between Curnel’s admission and her biopsy, Esantsi’s initial

breaches do not constitute a cause-in-fact of Curnel’s injuries. See Zamarripa, 526

S.W.3d at 461 (holding that expert reports were deficient because they failed to

explain how hospital proximately caused death of pregnant patient); Dowell, 262

S.W.3d at 330 (holding that “the defendants’ negligence was too attenuated from

the [harm] to have been a substantial factor in bringing it about”); Shenoy, 2011

WL 6938538, at *9 (holding that expert report was deficient on causation because

physician’s negligence in clearing patient for surgery was “too attenuated” from

21
patient’s death from post-surgery complications); cf. Allways Auto Grp., Ltd. v.

Walters, 530 S.W.3d 147, 147–49 (Tex. 2017) (per curiam) (holding that car

dealership did not proximately cause collision between intoxicated motorist and

other driver by providing loaner vehicle to motorist 18 days before collision

occurred, despite fact that motorist was also intoxicated when dealership provided

him vehicle).

In his reports, Sheer identifies two subsequent breaches by

Esantsi: (1) “maintaining [Curnel’s] admission to the hospital for the biopsy” and

(2) ordering a pre-procedure prothrombin time test “in preparation of the liver

biopsy.” To conclude that either of these subsequent breaches was a substantial

factor in bringing about Curnel’s injuries, we would have to infer that Esantsi had a

duty to prevent the biopsy from taking place or that he participated in the decision

to biopsy Curnel’s liver in a manner that was “collaborative,” much like the “the

screening, diagnosis, and treatment” of the two defendant-physicians in

Bustamante v. Ponte was “collaborative.” 529 S.W.3d 447, 457 (Tex. 2017). This

is particularly true given that Ugbarugba possessed the information that DILI was a

potential cause of Curnel’s elevated liver enzymes and nevertheless ordered a

biopsy. The reports do not state how Esantsi “had either the right or the means to

persuade” Ugbarugba and Brodie to cancel the biopsy. Zamarripa, 526 S.W.3d at

461. Nor do they otherwise explain whether Esantsi “had any say in the matter.”

22
Id. We hold that Sheer’s reports on Esantsi do not provide an adequate opinion on

cause-in-fact.

We further hold that Sheer’s reports do not provide an adequate opinion on

foreseeability, either. In his reports, Sheer explains that, because the liver is “very

vascular” and “it is not possible to visualize all of the blood vessels during the

biopsy,” “in the process of removing pieces of liver tissues, there is [a] risk of

cutting one or more blood vessels.” Sheer does not state, however, whether this

risk was known to Esantsi—who is not a gastroenterologist and does not perform

liver biopsies—or should have been recognized before the biopsy. Nor can we

draw this inference from Sheer’s reports. Cornejo, 446 S.W.3d at 123. Sheer does

not address whether the risk was generally known or recognized by hospitalists

like Esantsi before the surgery. Nor does Sheer provide information demonstrating

that the risk is part of the informed consent disclosures or that a hospitalist of

ordinary intelligence would have anticipated the danger of a patient’s blood vessel

being cut during this type of procedure. See Price, 224 S.W.3d at 336.

We hold that Sheer’s reports on Esantsi fail to adequately address both

components of proximate cause.

C. Adequacy of expert reports on Methodist

The Curnels supported their claim against Methodist with expert reports

from Fomenko and Sheer. Fomenko’s expert reports address standard of care and

23
breach,9 while Sheer’s address causation. The trial court found that the combined

expert reports were deficient on all three elements.

1. Fomenko’s opinions on elements of standard of care and breach

We begin our analysis by considering whether Fomenko’s reports provide

adequate opinions on the first two elements: standard of care and breach. See TEX.

CIV. PRAC. & REM. CODE § 74.351(r)(6).

With respect to the Curnels’ claim against Methodist for its allegedly

inadequate policies, Fomenko opines that the standard of care required the hospital

to have in place and enforce policies and procedures requiring all physicians,

nurses, and pharmacists providing care to a patient to evaluate the patient’s

medications for hepatotoxicity and other negative effects and contraindications

through in-house computer formulary programs and pharmaceutical publications.

She further opines that the policies and procedures should require such an

evaluation to occur when the patient is admitted to the hospital and, once admitted,

when the patient is prescribed a given medication. According to Fomenko,

Methodist breached this standard because such policies and procedures were either

not in place or not enforced, as evidenced by the fact that Curnel’s medications

9
Because Fomenko is a registered nurse and not a physician, she is not qualified to
offer an opinion on causation. See TEX. CIV. PRAC. & REM.
CODE § 74.351(r)(5)(C).

24
were not evaluated for hepatotoxicity when she was admitted to the hospital or

before the nurses administered nitrofurantoin to her for three consecutive days.

With respect to the Curnels’ vicarious liability claim based on negligence by

the Methodist nursing staff, Fomenko opines that the standard of care required the

nurses to evaluate Curnel’s medications; recognize that nitrofurantoin was

hepatotoxic and thus contraindicated given Curnel’s elevated liver

enzymes; refrain from administering nitrofurantoin to Curnel; notify the ordering

practitioner, Esantsi, of the reason for their decision; and seek clarification of his

order.

According to Fomenko, the nurses breached the standard of care by failing

to take any of these steps. The nurses failed to evaluate the hepatotoxic potential of

Curnel’s medications when Curnel presented to the ER or when she was admitted

to the hospital, and they failed to document the need to perform such an evaluation

in Curnel’s plan of care. They noted Curnel had been taking nitrofurantoin, but

they failed to recognize that nitrofurantoin is hepatotoxic and thus failed to clarify

the contraindicated nitrofurantoin order with Esantsi or any other practitioner. And

instead of holding the medication, they administered it to Curnel for three

consecutive days.

In her reports, Fomenko explains in detail what she believes the standard of

care required Methodist and its nursing staff to have done under the circumstances

25
and what they did instead. Palacios, 46 S.W.3d at 880; see Gardner v. U.S.

Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008) (per curiam) (when health care

liability claim involves vicarious liability theory, expert report that adequately

implicates actions of party’s agents or employees is sufficient to implicate party

itself). We hold that Fomenko’s expert reports provide adequate opinions on the

standard of care applicable to Methodist and the manner in which the care

Methodist rendered breached that standard. See TEX. CIV. PRAC. & REM.

CODE § 74.351(r)(6).

2. Sheer’s opinion on element of causation

We next consider whether Sheer’s reports provide an adequate opinion on

the third element: causation. In his reports, Sheer opines that, by failing to

promptly evaluate Curnel’s mediations and instead administering the

contraindicated antibiotic for three consecutive days, Methodist and its nursing

staff deprived Curnel’s physicians of “necessary data and information for making

the correct diagnosis and considering discharge from the hospital.”

According to Sheer, had the Methodist nurses complied with the standard of

care identified by Fomenko, the physicians would have had the benefit of data

showing a declining trend in Curnel’s liver enzymes, which, in turn, would have

led them to diagnose her with DILI and discharge her for further monitoring on an

26
outpatient basis, thereby avoiding the liver biopsy and the injuries that Curnel

received from it.

[A]dministration of the nitrofurantoin to [Curnel] during her
hospitalization (due to failure to evaluate the hepatotoxic potential of
the medication) perpetuated the elevated liver enzymes. In reasonable
medical probability, if the nurses had not administered nitrofurantoin,
[Curnel]’s liver enzymes would have immediately improved. Thus,
the nurses’ administration of the drug deprived the physicians of data
relevant to a diagnosis of probable drug induced liver injury and
discharge for outpatient monitoring.

Sheer’s reports about the nurses, like his reports on Esantsi, attempt to show

proximate cause by explaining a chain of events that begins with the Methodist

nurses’ failure to evaluate Curnel’s medications and to refrain from administering

the contraindicated nitrofurantoin and ends with Curnel’s artery being nicked and

the resulting injuries. And like the alleged negligence of Esantsi, the alleged

negligence of Methodist and its nursing staff is too attenuated from Curnel’s

injuries to be considered a substantial factor in bringing those injuries about.

Curnel’s physicians identified DILI as a potential cause of her elevated liver

enzymes two days before the biopsy. Ugbarugba and Naygandhi both considered

DILI a potential cause of Curnel’s elevated liver enzymes, both ordered that Curnel

stop taking all hepatotoxic medications, and Naygandhi specifically ordered that

Curnel stop taking nitrofurantoin. Once Curnel stopped taking nitrofurantoin, her

enzymes began to improve. And, as Sheer states in his reports, by October 12, the

liver tests showed even “further improvement.” None of Curnel’s physicians
27
ordered that the biopsy not take place. The physicians had the information to

diagnose Curnel with DILI and discharge her from the hospital before the biopsy.

Instead, armed with the very information that Curnel claims they needed, they

elected to go forward with the biopsy on its scheduled date. Sheer’s reports do not

explain how and why additional information from the nurses would have led the

physicians to cancel the biopsy if the information the physicians already had did

not or how the nurses “had either the right or the means to persuade” the

physicians to cancel the biopsy. Zamarripa, 526 S.W.3d at 461. Nor do Sheer’s

reports state that Methodist’s nurses were part of the decision to perform the

biopsy or its timing. We hold that Sheer’s reports do not adequately address cause-

in-fact for the claims against Methodist.

We further hold that Sheer’s reports do not adequately address

foreseeability, either. They do not explain how and why Methodist’s nurses should

have anticipated Curnel’s artery being nicked because of either Methodist’s failure

to implement and enforce policies and procedures requiring the evaluation of

hepatotoxic medication or the nurses’ failure to evaluate Curnel’s medications for

hepatotoxicity and to refuse to administer the drug. Thus, we hold that Sheer’s

reports on Methodist fail to adequately address both components of proximate

cause.

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D. Conclusion on adequacy of expert reports

In sum, we hold that Sheer’s reports on Esantsi provide adequate opinions

on the standard of care and breach but do not provide an adequate opinion on either

component of proximate cause. We further hold that Fomenko’s reports on

Methodist provide adequate opinions on the standard of care and breach but that

Sheer’s reports on Methodist do not provide an adequate opinion on either

component of proximate cause. Therefore, the trial court did not abuse its

discretion in finding the reports inadequate as to both Esantsi and Methodist.

Accordingly, we overrule the Curnels’ first issue.

Motions for Extension to Cure

In their second and third issues, the Curnels contend that the trial court

abused its discretion by denying their motion for a 30-day extension to cure the

deficient expert reports and by denying their motion for reconsideration.

Under the Act, if the plaintiff timely serves an expert report, and the trial

court concludes that the report is an objective good faith effort to comply with the

statute but nevertheless deficient in some way, the trial court has the discretion to

grant the plaintiff one 30-day extension to cure the deficiencies. TEX. CIV. PRAC. &

REM. CODE § 74.351(c); Mangin, 480 S.W.3d at 705–06. The trial court should err

on the side of granting the extension. Samlowski v. Wooten, 332 S.W.3d 404, 416

(Tex. 2011) (Guzman, J., concurring) (“In order to preserve the highest number of

29
meritorious claims, trial courts should err on the side of granting claimants’

extensions . . . .”); see Samlowski, 332 S.W.3d at 411 (plurality op.) (agreeing with

concurrence that trial court should err on side of granting extension). And the trial

court must grant the extension if the deficiencies are curable. Zamarripa, 526

S.W.3d at 461.

The Texas Supreme Court established a “minimal” standard for determining

whether a deficient report is curable: “a 30–day extension to cure deficiencies in an

expert report may be granted if the report is served by the statutory deadline, if it

contains the opinion of an individual with expertise that the claim has merit, and if

the defendant’s conduct is implicated.” Scoresby, 346 S.W.3d at 557.

We review a trial court’s ruling on motion for an extension to cure a

deficient expert report for an abuse of discretion. Quintero v. Hous. Methodist

Hosp., No. 01-14-00448-CV, 2015 WL 831955, at *2 (Tex. App.—Houston [1st

Dist.] Feb. 26, 2015, pet. denied) (mem. op.); Henry v. Kelly, 375 S.W.3d 531, 535

(Tex. App.—Houston [14th Dist.] 2012, pet. denied).

The Curnels served Methodist and Esantsi with expert reports before the

statutory deadline, Methodist and Esantsi filed objections to the reports, and the

Curnels served Methodist and Esantsi with additional reports in response to the

objections. As discussed above, despite their deficiencies, these reports contain the

opinions of qualified experts that the Curnels’ claims had merit and implicated the

30
conduct of Methodist and Esantsi; they qualify as objective good faith efforts to

comply with the statute. See Scoresby, 364 S.W.3d at 557.

The trial court dismissed their claims without affording them an opportunity

to cure their deficient reports. Part of the purpose of the extension is to afford a

plaintiff who made a good faith effort the chance to cure a defective report after the

deficiencies have been identified by the trial court. Given the Supreme Court’s

minimal standard and the Curnels’ objective good faith efforts, we cannot say that

the Curnels’ reports were incurable. See Zamarripa, 526 S.W.3d at 461.

Moreover, when the trial court dismissed the Curnels’ claims, it was unclear

whether the statute required expert reports to address foreseeability, and at least

two courts of appeals had held that it did not. See Rio Grande Reg’l Hosp. v.

Ayala, No. 13-11-00686-CV, 2012 WL 3637368, at *19 (Tex. App.—Corpus

Christi Aug. 24, 2012, pet. denied) (mem. op.), abrogated by Columbia Valley

Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453 (Tex. 2017); Adeyemi v.

Guerrero, 329 S.W.3d 241, 246 (Tex. App.—Dallas 2010, no pet.). The Texas

Supreme Court resolved the issue while this appeal was pending when it issued

Zamarripa and held that an expert report must address both cause-in-fact and

foreseeability. 526 S.W.3d at 460. Given this development, the Curnels’ should be

afforded the opportunity to amend their reports to address foreseeability and to

cure the other deficiencies identified in this opinion.

31
Therefore, we hold that the trial court abused its discretion in denying their

motion for an extension to cure and motion for reconsideration. Accordingly, we

sustain the Curnels’ second and third issues.

Conclusion

We reverse the trial court’s order and remand for further proceedings.

Harvey Brown
Justice

Panel consists of Justices Jennings, Bland, and Brown.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4304757. Public record. Not legal advice.