The opinion
Opinion issued August 23, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00742-CV
———————————
NANCY CARMEN CURNEL AND RONALD CURNEL, Appellants
V.
THE METHODIST HOSPITAL, TMH HEALTH CARE GROUP, OBIOHA
EMENANJO, R.N., LIQUN JIANG, R.N., AND MOSHIR BANSUAN, R.N.,
Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2016-36453
MEMORANDUM OPINION
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).
Nancy Curnel presented to the emergency room of Houston Methodist
Hospital-Willowbrook (“Willowbrook”) with elevated liver enzymes caused by a
recently prescribed antibiotic. Curnel was examined by a hospitalist, who, without
evaluating her current medications for hepatotoxicity, misdiagnosed her with viral
hepatitis, ordered that she continue taking the antibiotic, and admitted her to the
hospital. Once admitted, Curnel underwent further testing, but none of the
physicians or nurses evaluated her medications for hepatotoxicity. As a result, she
continued to receive the hepatotoxic antibiotic.
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 but also ordered a biopsy of her liver to test for other potential causes. Later
that same day, another hospitalist discontinued the antibiotic, and Curnel’s liver
enzymes began to improve. Despite the improvement, none of Curnel’s physicians
cancelled or postponed the biopsy. On the morning of the fifth day of Curnel’s
hospitalization, a radiologist performed the biopsy as scheduled. During the
biopsy, the radiologist nicked Curnel’s artery, causing her severe injuries.
Curnel and her husband, Ronald, asserted health care liability claims against
the various physicians who treated her throughout her hospitalization. The Curnels
also asserted two health care liability claims against Willowbrook. The first was a
direct liability claim based on Willowbrook’s alleged failure to have in place
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policies and procedures to ensure all medications at Willowbrook were safely
prescribed and administered. The second was a vicarious liability claim based on
the Willowbrook nursing staff’s failure to evaluate Curnel’s medications for
hepatotoxicity, refrain from administering the antibiotic, and inform the
prescribing hospitalist of the antibiotic’s hepatotoxicity.
The Curnels served a series of expert reports from a registered nurse, Julie
Fomenko, and a gastroenterologist, Dr. Todd Sheer. Fomenko’s reports addressed
the standard of care and breach, while Sheer’s reports addressed causation.
Willowbrook filed a motion to dismiss. The trial court found that the combined
expert reports were deficient on all three elements, denied the Curnels’ request for
an extension to cure the deficiencies, and dismissed the Curnels’ claims against
Willowbrook with prejudice. The Curnels appealed the trial court’s interlocutory
order dismissing their claims against Willowbrook.
After they filed their appeal, the Curnels filed an amended petition, which
asserted health care liability claims against the Methodist Hospital System
(“Methodist System”), which manages and oversees Willowbrook, as well as three
Willowbrook nurses, Moshir Bansuan, Obioha Emenanjo, and Liqun Jiang (the
“Nurse Defendants”). The Curnels’ claim against Methodist System was based on
the same allegations as their direct liability claim against Willowbrook, and their
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claims against the Nurse Defendants were based on the same allegations as their
vicarious liability claim against Willowbrook.
The Curnels served another series of expert reports from Fomenko and
Sheer, and Methodist System and the Nurse Defendants filed motions to dismiss.
Like the expert reports on Willowbrook, the trial court found the expert reports on
Methodist System and the Nurse Defendants deficient on all three elements. The
trial court denied the Curnels’ request for an extension to cure and dismissed their
claims with prejudice. The Curnels then filed this second interlocutory appeal, in
which they raised substantially similar issues as the first, contending that the trial
court abused its discretion by (1) granting the motions to dismiss and (2) denying
their motion for an extension to cure.
During the pendency of this second appeal, another panel of this court issued
an opinion resolving the first appeal, Curnel v. Houston Methodist Hosp.-
Willowbrook, No. 01-17-00088-CV, 2018 WL _______ (Tex. App.—Houston [1st
Dist.] Aug. 16, 2018, no pet. h.) (“Curnel I”). There, the court held that Fomenko’s
reports on Willowbrook provided adequate opinions on the standard of care and
breach but that Sheer’s reports on Willowbrook did not provide an adequate
opinion on either component of proximate cause. Id. at *__. The court further held,
however, that these deficiencies might be curable and that the trial court therefore
abused its discretion in denying the Curnels’ motion for an extension to cure. Id. at
4
*__. Accordingly, the court reversed the trial court’s order and remanded the case
for further proceedings. Id. at *__.
Applying the reasoning from Curnel I here, we hold that the expert reports
on Methodist System and the Nurse Defendants were deficient but potentially
curable. Therefore, we reverse the trial court’s order dismissing the Curnels’
claims against Methodist System and the Nurse Defendants and remand the case
for further proceedings.
Factual Background
The following is a summary of the factual background, which is based on
the expert reports of Sheer and Fomenko and is more thoroughly set out in Curnel
I. See id. at *__–__. We accept the expert reports’ factual statements for the limited
purpose of this appeal. See Bowie Mem’l Hosp. v. Wright, 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, where
she was diagnosed with a urinary tract infection and prescribed the antibiotic
nitrofurantoin. Nitrofurantoin is known for potential hepatotoxic effects and can
cause drug-induced liver injury (DILI).
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Curnel presents to the Willowbrook ER with elevated liver enzymes
Four days later, on October 8, 2015, Curnel presented to Willowbrook’s
emergency room. Curnel said that she had been sent to the ER by her primary care
physician because recent blood work indicated that she had elevated liver enzymes.
Curnel was examined by an emergency medicine physician, Dr. Scott
Wiesenborn, who noted that Curnel had recently begun taking nitrofurantoin and
had been referred to the ER for elevated liver enzymes. Wiesenborn diagnosed
Curnel with acute hepatitis without specifying a cause. There is no documentation
that Wiesenborn or the ER nurses evaluated Curnel’s current medications for
hepatotoxic potential or otherwise considered nitrofurantoin as a potential cause of
Curnel’s elevated liver enzymes.
Curnel is hospitalized
Wiesenborn called the on-duty hospitalist, Dr. Michael Esantsi, to determine
whether to admit Curnel for hospitalization. During his examination, Esantsi noted
that Curnel had recently begun taking nitrofurantoin, but he did not order that the
medication be evaluated for hepatotoxic potential or note it as a potential cause of
Curnel’s elevated liver enzymes. Instead, he diagnosed Curnel with probable viral
hepatitis; admitted her to the hospital; ordered that she continue taking her current
medications, including, specifically, nitrofurantoin; and ordered a gastroenterology
consultation.
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That afternoon, Curnel was examined by a gastroenterologist, Dr. Steven
Ugbarugba. Ugbarugba performed a number of tests, which ruled out a number of
potential causes of Curnel’s elevated liver enzymes. However, like the nurses and
physicians before him, Ugbarugba did not evaluate any of Curnel’s medications for
hepatotoxic potential or note nitrofurantoin as a potential cause of Curnel’s
elevated liver enzymes. Later that evening, Curnel received nitrofurantoin from
one of the nurses, Moshir Bansuan.
On the morning of October 9, Curnel’s liver enzymes were tested again. The
test results showed that her already abnormally high enzymes had risen even
further. She underwent additional testing, which indicated that she did not have
viral hepatitis but was suffering from DILI instead. Nevertheless, when Esantsi
saw her again that day, he continued to diagnose her with probable viral hepatitis.
There is no indication that Curnel’s medications were considered as a potential
cause of her elevated liver enzymes during that evaluation. That evening, Curnel
received nitrofurantoin from another nurse, Obioha Emenanjo.
On the morning of October 10, Curnel received nitrofurantoin from a third
nurse, Liqun Jiang. Later that day, she was examined again by Dr. Ugbarugba, who
noted that the cause of her elevated liver enzymes remained unclear and that she
might be suffering from DILI. Ugbarugba ordered that Curnel discontinue all
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hepatotoxic medications (without specifically ordering that she discontinue
nitrofurantoin) and that she undergo a liver biopsy.
Curnel was then examined by another hospitalist, Dr. Yamini Naygandhi,
who ordered a review of Curnel’s medications to “find out” what was “causing”
her “elevated” liver enzymes. She further ordered that Curnel discontinue
nitrofurantoin. Curnel did not receive nitrofurantoin that evening or the following
day, and her liver enzymes began to improve.
Curnel’s artery is nicked during her liver biopsy
On the morning of October 12, before her scheduled biopsy, Curnel’s liver
enzymes showed “further improvement.” A pre-biopsy blood clotting test ordered
by Esantsi returned as normal. Curnel was examined for a third time by
Ugbarugba, who noted that her biopsy would take place later that day. An hour and
a half later, a radiologist, Dr. Mark Brodie, performed the biopsy and nicked
Curnel’s artery, causing severe injuries.
Procedural History
The Curnels asserted a health care liability claim against Esantsi, and they
asserted two health care liability claims against Willowbrook—a direct liability
claim based on Willowbrook’s allegedly inadequate policies and procedures and a
vicarious liability claim based on the alleged negligence of the Willowbrook
nursing staff. The trial court found that the combined expert reports of Sheer and
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Fomenko were deficient as to both Esantsi and Willowbrook and dismissed the
Curnels’ claims against them with prejudice. The Curnels filed an interlocutory
appeal of the trial court’s order dismissing their claims against Esantsi and
Willowbrook. See id. at * __.
While the Curnel I interlocutory appeal was pending, the Curnels filed an
amended petition, which asserted health care liability claims against Methodist
System and the Nurse Defendants. The Curnels’ claim against Methodist System
was based on the same allegations as their direct liability claim against
Willowbrook, and their claims against the Nurse Defendants were based on the
same allegations as their vicarious liability claim against Willowbrook.
The Curnels served Methodist System and the Nurse Defendants with six
expert reports, three from Sheer and three from Fomenko. Methodist System and
the Nurse Defendants objected that the reports were inadequate as to all three
elements of the Curnels’ claims (standard of care, breach, and causation), objected
that Fomenko and Sheer were not qualified to offer opinions on standard of care or
breach for Methodist System, and moved to dismiss the Curnels’ claims. The
Curnels filed a response, which requested a 30-day extension to cure the expert
reports in the event the trial court found them deficient.
The trial court found the reports deficient, denied the Curnels’ motion for an
extension to cure, and dismissed their claims against Methodist System and the
9
Nurse Defendants. The Curnels filed this second interlocutory appeal of the trial
court’s order dismissing their claims against Methodist System and the Nurse
Defendants. While this interlocutory appeal was pending, the court issued Curnel I,
which held that the expert reports on Willowbrook were deficient but potentially
curable, reversed the trial court’s order, and remanded the case for further
proceedings. Id. at *__.
Motion to Dismiss
In their first issue, the Curnels contend that the trial court abused its
discretion by dismissing their claims against Methodist System and the Nurse
Defendants 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
failed to meet the standards, and (3) causal relationship between that failure and
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the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM.
CODE § 74.351(r)(6).
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).
When the plaintiff timely serves an expert report, and the defendant timely
files a motion to dismiss to challenge the adequacy of the report, the trial court
may take one of three actions. Mangin, 480 S.W.3d at 705. First, if the trial court
concludes that the report is adequate, it must deny the motion. Id. Second, if the
trial court concludes that the report does not constitute an objective good faith
effort to comply with the statute, it must grant the motion. Id.; see TEX. CIV. PRAC.
& REM. CODE § 74.351(l). Third, if the trial court concludes that the report is an
objective good faith effort to comply with the statute but is nevertheless deficient
in some way, it may grant the plaintiff one 30-day extension to cure the deficiency
and must grant the extension if the deficiency is curable. Mangin, 480 S.W.3d at
705–06.
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A report qualifies as an objective good faith effort to comply 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 court to
conclude that the plaintiff’s claims have merit. Baty v. Futrell, 543 S.W.3d 689,
693–94 (Tex. 2018); Mangin, 480 S.W.3d at 706. 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. And when the issue is the expert’s qualifications, the court may
also consider the four corners of the expert’s curriculum vitae. Mangin, 480
S.W.3d at 706.
We review a trial court’s ruling on a motion to dismiss a healthcare liability
claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 142 (Tex. 2015) (per curiam). 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.
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B. Methodist System
The Curnels supported their claim against Methodist System with expert
reports from Fomenko and Sheer. Fomenko’s reports provide opinions on the
standard of care and breach, while Sheer’s reports provide an opinion on causation.
1. Fomenko’s qualifications
The trial court generally sustained Methodist System’s objections, including
its objection that Fomenko is not qualified to provide opinions on the standards of
care applicable to Methodist System or the manner in which Methodist System
breached those standards.1 We therefore begin our analysis by considering whether
Fomenko was qualified to provide an opinion on these two elements.
Under the statute, a person may qualify as an expert witness on the issue of
whether the health care provider departed from accepted standards of care only if
the person:
(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the
defendant health care provider, if the defendant health care
provider is an individual, at the time the testimony is given or
was practicing that type of health care at the time the claim
arose;
1
The trial court also sustained Methodist System’s objection that Sheer is not
qualified to render an opinion on the applicable standard of care for Methodist
System. On appeal, the Curnels’ do not challenge this ruling.
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(2) has knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness,
injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of health
care.
TEX. CIV. PRAC. & REM. CODE § 74.402(b).
Methodist System contends that Fomenko fails to satisfy the second and
third prongs of this test. We disagree.
Fomenko opines that the standard of care required Methodist System to
develop and implement policies and procedures requiring the Willowbrook nursing
and pharmacy staff to promptly (1) evaluate all patient medications for toxicity and
(2) report the results of such evaluations to the patients’ physicians. Fomenko’s CV
and reports establish her qualifications to offer these opinions.
Fomenko’s CV lists her relevant education, professional experience, and
professional memberships. Under education, Fomenko’s CV states that she has
undergraduate and graduate degrees in nursing and that she is currently working on
her PhD. Under professional experience, Fomenko’s CV lists fifteen positions she
has held over her thirty-plus year career as a registered nurse. Fomenko’s CV
states that Fomenko currently serves as Clinical Assistant Professor of Nursing at
Texas A&M University—Corpus Christi, where she teaches Critical Care Nursing,
Medical-Surgical Nursing, and Professional Transitions. Before she began
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teaching, Fomenko was the Chief Clinical Officer of a hospital in Corpus Christi.
And before that, she held a variety of other positions at numerous other hospitals
and clinics. Under professional memberships, Fomenko’s CV states that she is a
member of the International Association of Clinical Simulation & Learning, Texas
Nurses Association, and American Nurses Association, among other organizations.
In her reports, Fomenko explains her professional experience:
I have taught pharmacology and safety in medication delivery to
nurses and hospital management personnel. I have more than 30 years
of clinical experience and have held clinical, management, and
supervisory positions in a variety of inpatient and outpatient hospital
settings and at many administrative levels. I have participated in
management committees, as well as worked in a great variety of
specialty practice areas (critical care, emergency room, general
nursing units, cardiac catheterization and invasive laboratories, and in
private medical practice). I also hold academic qualifications in
nursing management including a Master’s degree in Nursing
Leadership and Management from Walden University. I have
extensive experience in the development of policies and procedures,
evaluating competency of nursing staff, and methods for improving
and ensuring clinical competence of hospital staff. I am directly
involved in the educations of clinicians, evaluation and management
of their educational practices and learning methods . . . .
Thus, Fomenko’s CV and reports establish that she has knowledge of the
accepted standards of care for a hospital system and experience in the
administrative aspects of a hospital system, at least with respect to how a hospital
system should regulate its nursing staff’s evaluation and administration of patient
medication. We hold that, based on the four corners of Fomenko’s CV and her
15
expert report, Fomenko is qualified to offer opinions on Methodist System’s
applicable standard of care and breach.
2. Fomenko’s opinions on elements of standard of care and breach
Next, we consider whether Fomenko’s reports provide adequate opinions on
the first two elements: standard of care and breach. In her reports, Fomenko opines
that the standard of care required Methodist System to develop and implement
policies and procedures that required the Willowbrook nursing and pharmacy staff
to promptly (1) evaluate all patient medications for toxicity and (2) report the
results of such medication evaluations to the patients’ physicians. According to
Fomenko, such policies and procedures should require an evaluation of
medications when the patient presents to the hospital, when the patient is admitted
to the hospital, and, once admitted, when the patient is prescribed and administered
medication.
Fomenko explains that she reviewed Willowbrook’s nursing and pharmacy
policies and procedures and did not find any policies and procedures providing for
the routine evaluation of patient medications or the timely delivery of the results of
such evaluations to physicians and other clinicians. Fomenko further explains that,
even if such policies and procedures existed, the Willowbrook nursing and
pharmacy staff failed to follow them, as evidenced by the fact that Curnel’s
medications were not evaluated for hepatotoxicity when she was admitted to the
16
hospital or before the nurses administered nitrofurantoin to her for three
consecutive days. Thus, Fomenko opines that Methodist System breached the
applicable standard of care because policies and procedures for medication
evaluation were either not in place or not enforced. According to Fomenko,
Methodist System “chose to rely on random compliance of the individual
physician, nurse, [and] pharmacist” and assumed that they would “‘just know’ the
medication effects before prescribing and administering a drug.”
These opinions are substantially similar to the opinions Fomenko provided
in her reports on the Curnels’ direct liability claim against Willowbrook, the
adequacy of which were addressed in Curnel I. 2018 WL _______, at *__.
Applying the reasoning from Curnel I here, we hold that Fomenko’s reports on
Methodist System explain what she believes the standard of care required
Methodist System to have done under the circumstances and what it did instead.
See Palacios, 46 S.W.3d at 880. We hold that Fomenko’s expert reports provide
adequate opinions on the standard of care applicable to Methodist System and the
manner in which the care rendered by Methodist System failed to meet that
standard. See Curnel I, 2018 WL _______, at *__.
3. Sheer’s opinion on element of causation
Next, we consider whether Sheer’s reports provide an adequate opinion on
the element he addresses: causation. In his reports, Sheer opines that the breach of
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standard of care identified by Fomenko—i.e., Methodist System’s failure to
develop and implement policies and procedures relating to the evaluation of
medication—proximately caused Curnel’s injuries. According to Sheer, had such
policies and procedures been in place, the Willowbrook nursing and pharmacy
staff would have evaluated Curnel’s medications and informed her physicians that
nitrofurantoin is hepatotoxic, and Curnel’s physicians, in turn, would have ordered
that she discontinue the antibiotic. Curnel’s liver enzymes would have begun to
improve, and her physicians would have then diagnosed her with DILI, discharged
her from the hospital, and referred her to her primary care provider for continued
outpatient monitoring. And, as a result, Curnel would have avoided the
unnecessary liver biopsy that caused her severe injuries.
Again, this opinion is substantially similar to the opinion Sheer provided in
his reports on the Curnels’ direct liability claim against Willowbrook, the adequacy
of which was addressed in Curnel I. Id. at *__. Like his reports on Willowbrook,
Sheer’s reports on Methodist System attempt to show proximate cause by
explaining a chain of events that begins with Methodist System’s failure to
implement and enforce certain policies and procedures and ends with Curnel’s
artery being nicked during the unwarranted liver biopsy. The Curnel I opinion held
that Sheer’s reports failed to adequately address cause-in-fact because the reports
did not explain how and why the liver biopsy would have been avoided had the
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policies and procedures been in place given that Curnel’s physicians did what the
policies and procedures were meant to accomplish—evaluate Curnel’s medications
for hepatotoxicity, recognize DILI as a potential cause of her elevated liver
enzymes, and discontinue nitrofurantoin—but proceeded with the biopsy anyway.
Id. at * __. And Sheer’s reports were held to have failed to adequately address
foreseeability because the reports did not explain how and why Willowbrook
should have anticipated that its failure to implement the policies and procedures
would result in Curnel’s artery being nicked during the biopsy of her liver. Id. at
*__. Applying that reasoning here, we hold that Sheer’s reports on Methodist
System fail to adequately address both components of proximate cause.
C. The Nurse Defendants
The Curnels supported their claims against the Nurse Defendants with expert
reports from Fomenko and Sheer. Once again, Fomenko’s reports address the
standard of care and breach, while Sheer’s reports address causation. Thus, we
begin our analysis by considering whether Fomenko’s reports provide adequate
opinions on the first two elements: standard of care and breach.
1. Fomenko’s opinions on elements of standard of care and breach
In her reports, Fomenko opines that the standard of care required the Nurse
Defendants to (1) evaluate Curnel’s medications, (2) recognize that nitrofurantoin
was hepatotoxic and thus contraindicated given Curnel’s elevated liver enzymes,
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(3) refrain from administering nitrofurantoin to Curnel, (4) notify the ordering
practitioner, Dr. Esantsi, of the reason for their decision, and (5) seek clarification
of Dr. Esantsi’s order. Fomenko stated that her opinion was supported, in part, by
Section 217.11 of the Texas Administrative Code, which sets forth “standards of
practice” for nurses practicing within the State. 22 TEX. ADMIN.
CODE § 217.11(1)(A)–(D).
Fomenko further opines that the Nurse Defendants breached the standard of
care by failing to take any of the steps listed above. They failed to evaluate the
hepatotoxic potential of Curnel’s medications when she 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
another practitioner. And instead of holding the medication, they administered it to
Curnel for three additional days.
Again, these are component parts of the opinions Fomenko provided in her
reports on the Curnels’ vicarious liability claim against Willowbrook, the adequacy
of which were addressed in Curnel I. 2018 WL _______, at *__. Applying that
reasoning here, we hold that Fomenko’s reports on the Nurse Defendants explain
what she believes the standard of care required the Nurse Defendants to have done
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under the circumstances and what they did instead. Id. at *__. We hold that
Fomenko’s expert reports provide adequate opinions on the standard of care
applicable to the Nurse Defendants and the manner in which the care they rendered
breached that standard. Id. at *__.
2. Sheer’s opinion on element of causation
Next, we consider whether Sheer’s reports provide an adequate opinion on
the element he addresses: causation. In his reports, Sheer opines that, by failing to
promptly evaluate Curnel’s medications and instead administering the
contraindicated antibiotic for three additional days, the Nurse Defendants
“perpetuated Mrs. Curnel’s elevated liver values and the physicians’ drive for
further workup.” According to Sheer, had the Nurse Defendants 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 outpatient basis, thereby avoiding the liver biopsy and the injuries that
resulted from it.
Again, Sheer provided this opinion as part of his reports on the Curnels’
vicarious liability claim against Willowbrook. Id. at * __. Like his reports on
Willowbrook’s nursing staff, Sheer’s reports on the Nurse Defendants attempt to
show proximate cause by explaining a chain of events that begins with the Nurse
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Defendants’ failure to evaluate Curnel’s medications and refrain from
administering the contraindicated nitrofurantoin and ends with Curnel’s artery
being nicked and the resulting injuries. Curnel I held that Sheer’s reports failed to
adequately address cause-in-fact because the reports did not (1) explain how and
why the nurses’ failure to evaluate Curnel’s medications and refrain from
administering nitrofurantoin caused the biopsy and resulting injuries when the
physicians themselves evaluated Curnel’s medications and discontinued
nitrofurantoin without cancelling or postponing the biopsy, (2) explain 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, or (3) state that the nurses were part of the
decision to perform the biopsy or its timing. Id. at *__. Sheer’s reports were also
held to have failed to adequately address foreseeability because the reports did not
explain how and why the nurses should have anticipated that their negligent failure
to evaluate Curnel’s medications and to refrain from administering the drug would
result in Curnel’s artery being nicked during a biopsy of her liver. For these same
reasons, we hold that Sheer’s reports on the Nurse Defendants fail to adequately
address causation.
* * *
In sum, we hold that Fomenko is qualified to offer an opinion on Methodist
System and that her reports on Methodist System provide adequate opinions on the
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standard of care and breach but that Sheer’s reports on Methodist System do not
provide adequate opinions on either component of proximate cause. Likewise, we
hold that Fomenko’s reports on the Nurse Defendants provide adequate opinions
on the standard of care and breach but that Sheer’s reports on the Nurse
Defendants do not provide adequate opinions on either component of proximate
cause. Therefore, the trial court did not abuse its discretion in finding the reports
inadequate as to both Methodist System and the Nurse Defendants. Accordingly,
we overrule the Curnels’ first issue.
Motion for Extension to Cure
In their second issue, the Curnels contend that the trial court abused its
discretion by denying their motion for a 30-day extension to cure the deficiencies
in their expert reports.
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
meritorious claims, trial courts should err on the side of granting claimants’
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extensions . . . .”); see also 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 might qualify for an extension to cure: “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 timely served Methodist System and the Nurse Defendants with
reports before the statutory deadline. Despite their deficiencies, these reports
contain the opinions of qualified experts that the Curnels’ claims had merit and
implicated the conduct of Methodist System and the Nurse Defendants; they
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qualify as objective good faith efforts to comply with the statute. See Scoresby, 364
S.W.3d at 557.
Despite objective good faith efforts from the Curnels, 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 “minimal” standard established by the
Texas Supreme Court and the Curnels’ objective good faith effort to serve
compliant reports, we cannot say that it would have been impossible for the
Curnels to have cured their reports once they were informed of the deficiencies.
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
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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.
Therefore, we hold that the trial court abused its discretion in denying their
motion for an extension to cure. Accordingly, we sustain the Curnels’ second issue.
Conclusion
We reverse the trial court’s order and remand for further proceedings.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
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