The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00377-CV
HMIH Cedar Crest, LLC d/b/a Cedar Crest Hospital & RTC, Appellant
v.
Christina Buentello, Individually and As Next Friend of D.B.J., a Minor, Appellee
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 312,473-C, THE HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant HMIH Cedar Crest, LLC d/b/a Cedar Crest Hospital & RTC (Cedar
Crest) appeals the denial of its motion to dismiss the suit by appellee Christina Buentello,
Individually and As Next Friend of D.B.J., a Minor. Cedar Crest contends that the trial court
abused its discretion by overruling its objections to Buentello’s expert report because it is (1)
deficient in its description of the standard of care and the manner in which Cedar Crest breached
the standard of care and (2) conclusory and fails to satisfy the statutory requirements regarding
causation. We conclude that Buentello’s expert report is inadequate, reverse the trial court’s
order and remand for the trial court to consider whether to dismiss the cause or to grant
Buentello’s request for a thirty-day extension to cure deficiencies in the report, as well as for
other proceedings consistent with this opinion.
BACKGROUND 1
Six-year-old D.B.J. was admitted into Cedar Crest for treatment of suicidal
ideation and psychotic symptoms, including auditory hallucinations. As part of his intake
process, D.B.J. was identified as a child with severe mental illness and as particularly vulnerable
to psychological and medical harm. The next day, an eight-year-old patient was admitted into
Cedar Crest and became D.B.J.’s roommate. That night, at approximately 9:30 p.m., Cedar Crest
staff heard screaming and crying from D.B.J.’s room. The staff learned that the roommate had
choked and sexually assaulted D.B.J. The staff took the older child to a different room for the
night and noticed abrasions on D.B.J.’s throat as well as what Buentello’s expert described as
“psychological injuries.”
After a staff shift change the next morning, the oncoming registered nurse
assessed D.B.J. and noticed that he had swelling and petechiae around both eyes and bruising
and scratches around his neck. Cedar Crest did not inform D.B.J.’s mother until they sent him to
the emergency room about thirteen hours after the altercation. D.B.J.’s roommate disclosed
performing oral sex on D.B.J. to a visiting child protective services caseworker, which D.B.J.
confirmed. D.B.J. was discharged from Cedar Crest that day.
Buentello sued Cedar Crest, individually and on behalf of D.B.J., alleging
negligent hiring, retention, and supervision, and medical malpractice for failures to monitor, to
protect D.B.J., to assess him, to examine D.B.J.’s injuries, and to treat him properly. Buentello
submitted an expert report by Dr. Daniel Duhigg on the medical malpractice issues. Cedar Crest
1 This summary is drawn from the allegations and assertions in appellee’s petition and
her expert’s report. For purposes of our review of the adequacy of a medical expert report under
Chapter 74, however, we take the allegations in the report as true. Marino v. Wilkins,
393 S.W.3d 318, 320 n. 1 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
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objected to the report and moved to dismiss this cause, asserting that the report is (1) conclusory
and inadequate regarding the standard of care and breach and (2) insufficient as to causation.
The trial court overruled those objections, and Cedar Crest appealed.
APPLICABLE LAW
The plaintiff in a medical liability case must supply an expert report that is a
good-faith effort to provide a fair summary of the expert’s opinions. Tex. Civ. Prac. & Rem.
Code § 74.351(l), (r)(6); American Transitional Care Ctrs., Inc. v. Palacios, 46 S.W.3d 873,
878-79 (Tex. 2001). The report need not marshal all of a plaintiff’s proof, but must include the
expert’s opinion on each of the statutory factors. Palacios, 46 S.W.3d at 878; Walgreen Co.
v. Heiger, 243 S.W.3d 183, 185-86 (Tex. App.—Houston [14th Dist.] 2007, pet denied). The
factors include the “applicable standards of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code
§ 74.351(r)(6). The trial court must dismiss the cause against the health-care provider if the
plaintiff fails to file a report. Id. § 74.351(b).
To constitute a good-faith effort, the report must (1) inform the defendant of the
specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to
conclude the claims have merit. Palacios, 46 S.W.3d at 879. A report is not a good-faith effort
if it omits any of the statutory requirements or merely states the expert’s conclusions about the
standard of care, breach, and causation. Fortner v. Hospital of the Sw., LLP, 399 S.W.3d 373,
379 (Tex. App.—Dallas 2013, no pet.).
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To adequately identify the standard of care, an expert report must set forth
specific information about what the defendant should have done differently. Abshire v. Christus
Health Se. Tex., 563 S.W.3d 219, 226 (Tex. 2018). While the Act requires only a “fair
summary” of the standard of care and how it was breached, even a fair summary must set out
what care was expected, but not given. Palacios, 46 S.W.3d at 880. Mere reference to general
concepts regarding assessment, monitoring, and interventions are insufficient as a matter of law.
Id. at 873; Regent Health Care Ctr. of El Paso, L.P. v. Wallace, 271 S.W.3d 434, 441
(Tex. App.—El Paso 2008, no pet.).
The expert must make a good-faith effort to explain, factually how proximate
cause will be proven. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453,
460 (Tex. 2017). Proximate cause has two components: (1) foreseeability and (2) cause-in-fact,
though the report need not use those words. Id. To establish a causal relationship between the
injury and the defendant’s negligent act or omission, the expert report must show that the
defendant’s conduct was a substantial factor in bringing about the harm and, absent this act or
omission, the harm would not have occurred. Id.; Mitchell v. Satyu, No. 05-14-00479-CV,
2015 WL 3765771, at *4 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.). The report
must explain to a reasonable degree of medical probability how and why the breach of the
standard of care caused the injury. Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). An
expert may show causation by explaining a chain of events that begins with a defendant health-
care provider’s negligence and ends in injury to the plaintiff. Mitchell, 2015 WL 3765771, at *4.
The expert must explain the basis of his statements to link his conclusions to the
facts. Zamarripa, 526 S.W.3d at 460. An expert’s statement or opinion is conclusory when:
(1) he asks the jury to take his word that his opinion is correct but offers no basis for his opinion;
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or (2) he offers only his word that the bases offered to support his opinion actually exist or
support his opinion. Windrum v. Kareh, 581 S.W.3d 761, 769 (Tex. 2019) (discussing expert
testimony) (citing Jelinek, 328 S.W.3d at 536 (discussing expert report)).
We review a trial court’s ruling on an expert report’s sufficiency for abuse of
discretion. Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018). A trial court abuses its discretion
if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles.
Jelinek, 328 S.W.3d at 539. This Court may not substitute its judgment for that of the trial court.
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The trial court has no discretion in
determining what the law is or applying the law to the facts. In re American Homestar of
Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (orig. proceeding). In analyzing an expert
report’s sufficiency under this standard, we consider only the information contained within the
four corners of the report. Abshire, 563 S.W.3d at 223. We must view the report in its entirety,
rather than isolating specific portions or sections, to determine whether it includes the required
information. Baty, 543 S.W.3d at 694.
DISCUSSION
Cedar Crest contends that the trial court abused its discretion by overruling Cedar
Crest’s objections to Duhigg’s report and denying Cedar Crest’s motion to dismiss because the
report was deficient in (1) its description of the standard of care and the manner in which Cedar
Crest breached it, and (2) its conclusory nature and failure to satisfy the requirements of Texas
Civil Practice and Remedies Code Section 74.351.
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A. The report inadequately describes the standards of care and their breach.
Buentello asserts that Duhigg’s report supplied the necessary information
regarding the standards of care and their breach with the following statements:
• Following a psychological trauma, the Standard of Care is to assist the individual
in achieving a sense of safety, and either prevent the onset or mitigate the results
of acute stress disorder symptoms or post-traumatic stress disorder symptoms.
Failing to do this increases the likelihood of the onset of acute stress disorder, and
subsequently posttraumatic stress disorder.
• Following the strangulation of a child that causes tissue injury sever[e] enough to
bruise the neck while in a psychiatric facility, in the context of ongoing pain, the
Standard of Care is to have the child medically evaluated in the emergency
department, where providers have more experience evaluating, diagnosing, and
treating medical injuries.
• When the determination is made for a child in a psychiatric acute care hospital
facility to be evaluated in the emergency department following strangulation
violent enough to damage structures of the throat, the Standard of Care is to send
that child to the emergency department in a timely fashion, since early
identification of physical damage to the structures of the throat is associated with
better medical outcomes, whereas delays in evaluating, diagnosing and treating
physical damage to structures of the throat is associated with poorer outcomes and
worse injuries.
• [D.B.J.] should have received an adequate assessment and treatment for his acute
stress symptoms following the psychological injury sustained while a patient at
Cedar Crest Hospital and Residential Treatment Center. [D.B.J.] should have been
sent from the Cedar Crest Hospital and Residential Treatment Center to the
emergency department in a timely manner after the clinical determination that an
emergent evaluation of physical injury resulting from the physical and sexual
assault was indicated.
• The nursing staff of Cedar Crest Hospital and Residential Treatment Center
breached the standard of care by failing to send [D.B.J.] to the emergency
department in a timely way, and Cedar Crest Hospital and Residential Treatment
Center breached the standard of care by not providing therapeutic treatment for
the psychological injury sustained during the hospital stay by [D.B.J.].
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The breached standards of care discernible in these statements are that Cedar Crest should have
(1) performed an adequate assessment and treatment for D.B.J.’s acute stress symptoms,
(2) taken D.B.J. to the emergency room timely, and (3) provided therapeutic treatment for the
psychological injury sustained during D.B.J.’s stay.
Buentello contends that the report is adequate for the stage of litigation, asserting
that discovery is stayed and that summary-judgment level proof need not be marshaled in
the report.
Duhigg’s report resembles those found not to provide a fair summary of the
standard of care and its breach. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740,
747-49 (Tex. App.—Houston [14th Dist.] 2011, no pet.). In that case, the Houston Court of
Appeals wrote, “While a ‘fair summary’ is something less than a full statement of the applicable
standard of care and how it was breached, even a fair summary must set out what care was
expected, but not given.” Id. 747-48 (citing Palacios, 46 S.W.3d at 880). A minor admitted to a
hospital for evaluation of a psychiatric condition was molested by her roommate. Id. at 743.
The appeals court held that the trial court abused its discretion by finding adequate the assertions
in the expert’s original and supplemental reports that the hospital should “supervise closely and
house safely” its patients and not “allow any harm to occur to any of its patients” and the
conclusion that the hospital breached these obligations by not using “any of the number of
measures available” or providing “the most basic supervision.” Id. at 748-50. The court of
appeals held that the reports deficiently described the standard of care because they merely
concluded “that appellants did not provide a safe and secure environment for V.G., but do not
specify how this should have been accomplished.” Id. at 749. The court also held that “whether
a defendant breached the standard of care cannot be determined without ‘specific information
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about what the defendant should have done differently.’” Id. at 750 (citing Palacios, 46 S.W.3d
at 880). The court of appeals remanded to the trial court to consider whether the plaintiff should
receive an extension of time to file an amended report. Id. at 751; see also Tex. Civ. Prac. &
Rem. Code § 74.351(c).
By contrast, the Texas Supreme Court held that an expert report adequately
addressed the standard of care for assessing a patient when the report stated as follows:
The standard of care is to document a complete and accurate assessment
including:
a. A health history consisting of longstanding medical issues;
b. Focused assessments based on the patient’s primary complaint;
c. Pain assessments consisting of intensity of the pain, location of the
pain, interventions implemented to alleviate the pain and follow
re-assessment to evaluate the effectiveness of the intervention(s);
d. Assessments with any change in level of care or transfer of care
between different departments; and
e. Providing information in a timely manner.
Abshire, 563 S.W.3d at 227. 2 The supreme court determined that the report was sufficient
despite not designating a specific documentary procedure that should have been used; such detail
is not required in the report. Id. The Texas Supreme Court reversed the holding by the
Beaumont Court of Appeals that the report was inadequate, concluding that the trial court
correctly denied the motion to dismiss the cause for an inadequate report. Id.
2 There were three reports—two primary and one supplemental—in the case. Abshire
v. Christus Health Se. Texas, 563 S.W.3d 219, 227 (Tex. 2018). Because the detail of which
report contained what aspect the Texas Supreme Court found adequate does not affect our
analysis, we will for simplicity refer to the various reports as if they were one report.
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Unlike the report in Abshire, Duhigg’s report fails to set out the measures that
Cedar Crest should have taken in assessing, treating, and transporting D.B.J. Duhigg’s assertions
that the hospital must provide “adequate” assessment and treatment, “timely” transport an
assaulted patient to emergency care, and “therapeutic treatment” do not inform either Cedar
Crest or the trial court what the applicable standards are other than that Cedar Crest failed to
meet those undefined standards. Duhigg’s report is vague and conclusory like the report held
inadequate in Kingwood. See 362 S.W.3d at 748-50.
We conclude that the trial court abused its discretion by finding that Duhigg’s
report provided a fair summary of the standard of care and how it was breached and by
overruling Cedar Crest’s objection to the report. We sustain that part of Cedar Crest’s issue
attacking the adequacy of the expert report.
B. The report inadequately describes causation.
Buentello contends that Duhigg’s report satisfies the requirements concerning
causation with the following statements:
Based upon reasonable medical probability, the above noted deviations from the
accepted Standard of Care by agents of Cedar Crest Hospital and Residential
Treatment Center resulted in and are a proximate cause of the injuries and
damages sustained by [D.B.J.] as follows:
• On 09/20/2017 [D.B.J.] sustained medical and psychological injuries as a
result of being physically and sexually assaulted by another patient, while
hospitalized at Cedar Crest Hospital and Residential Treatment Center.
• Despite the determination being made by a physician assistant acting as an
agent of Cedar Crest Hospital and Residential Treatment Center to have
[D.B.J.’s] physical injuries emergently evaluated in the emergency
department, agents of Cedar Crest Hospital and Residential Treatment Center
did not arrange for him to be transported to the emergency department until
the following day. Responding to [D.B.J.’s] physical trauma in a timely
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manner would have helped to ensure a sense of safety and self-worth, whereas
the breach in standard of care increased the likelihood of developing a
secondary mental and emotional impairment, such as posttraumatic
stress disorder.
• Despite knowing the details of the psychological trauma of experiencing a
physical and sexual assault at age 6, agents of Cedar Crest Hospital and
Residential Treatment Center breached the standard of care by failing to
respond to [D.B.J.’s] acute stress symptoms with a therapeutic treatment
approach. Had Cedar Crest Hospital and Residential Treatment Center
responded to his acute stress symptoms in a therapeutic way consistent with
the standard of care, it would be less likely that [D.B.J.] would develop
posttraumatic stress disorder.
• The breaches of the standard of care by agents of Cedar Crest Hospital and
Residential Treatment Center during the hospitalization following the physical
and sexual assault he sustained in the hospital further contributed to the
psychological injuries sustained by [D.B.J.].
In Kingwood, the court of appeals held that the trial court abused its discretion by
finding adequate an expert report that provided as follows regarding causation:
• In medical probability, V.G. would be expected to suffer significant
psychological damage especially from sexual molestation occurring to her in a
treatment setting. The proximate cause of this was the hospital’s failure as
well as that of . . . Ms. Bassett to meet the standard of care.
• Had [V.G.] and the other patients been properly supervised, [V.G.] would not
have been assaulted.
362 S.W.3d at 750. The court of appeals held that the report inadequately described the causal
relationship between the hospital’s failures to meet the standards of care and the plaintiff’s
injuries because the expert did not explain how and why the failures resulted in molestation or
what constituted proper supervision. Id.
By contrast, the Abshire report found sufficient in Abshire provided more detail
regarding causation. 563 S.W.3d at 224-25. The report first described the damages caused:
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“The harm/injury that resulted from the substandard care provided by [Christus] was the
exacerbation of an undiagnosed vertebral fracture that lead [sic] to a spinal cord injury resulting
in paraplegia and bowel and bladder incontinence.” Id. at 224. The report then linked the failure
to meet the standard of care with the damages:
Failure of the nursing staff to document a complete and accurate assessment
resulted in a delay in proper medical care (ie. [sic] the ordering of imaging studies
and protection of the spine.) . . . . [H]ad the symptomology that Ms. Abshire was
experiencing been appropriately linked to the [OI] diagnosis then she could have
been admitted to the hospital on absolute bed rest, imaging studies such as a CT
or MRI of her back ordered, then treatment started to preserved [sic] the integrity
of the spine . . . .
The hospital staff clearly ignored signs and symptoms of spinal injury and kept
investigating the same areas over and over with no relief to the patient. . . . This
failure on the part of the hospital staff allowed the spinal injury to progress to the
point of paraplegia.
Failure to consider the patient’s prior relevant medical history was mostly [sic]
likely a cause of the hospital staff’s focus on the potential cardiac element of Ms.
Abshire’s pain.... Had they had a complete medical history they would have
known to examine other areas and that this patient had a high probability of a
compression fracture. The lack of proper documentation in the patient’s medical
record lead [sic] to a delay in treatment of Ms. Abshire’s compression fracture
which in medical probability lead [sic] to paralysis.
Id. at 224-25. The Texas Supreme Court concluded that the report provided a straightforward
link between the breach of the standard care alleged and the injury; it reversed the holding by the
Beaumont Court of Appeals that the report was inadequate. Id. at 225, 227.
Duhigg’s report resembles the inadequate report from Kingwood rather than the
adequate report from Abshire. It is vague about what injuries D.B.J. suffered from Cedar Crest’s
acts or omissions, and does not explain if or how the injuries are distinct from those attributable
to the assault. The report described abrasions, bruising, and petechiae, as well as “psychological
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injuries” as a result of the assault. But the assertion that Cedar Crest’s failures “increased the
likelihood of developing a secondary mental and emotional impairment, such as posttraumatic
stress disorder” does not show a link between Cedar Crest’s actions or omissions and D.B.J.’s
mental or emotional conditions. The report does not explain how Cedar Crest’s acts or
omissions were a substantial factor in bringing about a harm and that, but for the act or omission,
the harm would not have occurred. See Zamarripa, 526 S.W.3d at 460.
We conclude that the trial court abused its discretion by finding that Duhigg’s
report provided a fair summary of causation and by overruling Cedar Crest’s objection to the
report. We sustain that part of Cedar Crest’s issue attacking the adequacy of the expert report.
C. Remand, not dismissal, is appropriate.
Cedar Crest urges that the appropriate remedy is for this Court to dismiss
Buentello’s cause of action. See Tex. Civ. Prac. & Rem. Code § 74.351(b). Because the trial
court did not sustain Cedar Crest’s objections to the report, however, it did not consider
Buentello’s request that, if the trial court found the report inadequate, it grant her a thirty-day
extension of time to file a supplemental report to cure any deficiencies. See Tex. Civ. Prac. &
Rem. Code §74.351(c). Both parties have requested these actions from this Court.
A thirty-day extension to cure deficiencies may be granted if: (1) the report is
served by the statutory deadline; (2) if the report contains the opinion of an individual with
expertise that the claim has merit; and (3) if the defendant’s conduct is implicated. Scoresby
v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). “[A] document qualifies as an expert report if it
contains a statement of opinion by an individual with expertise indicating that the claim asserted
by the plaintiff against the defendant has merit.” Id. at 549. Duhigg’s report meets that standard
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and there is no assertion that it was untimely filed. Similar to Duhigg’s report, the report in
Scoresby described the injury, ascribed it to the physician’s breach of the standard of care, and
stated that their breach caused the injuries. Id. at 557. Texas Supreme Court in Scoresby held
that, although the plaintiff’s report was deficient because it did not state the standard of care and
only implied that it was inconsistent with the Physicians’ conduct, the plaintiff should have the
opportunity to cure the deficiencies because “there is no question that in [the expert’s] opinion,
Santillan’s claim against the Physicians has merit.” Id.
Similarly, Buentello’s expert report left no question that the expert believed her
claim against Cedar Crest has merit. We decline to dismiss this cause for failure to file an
adequate report and conclude that the trial court should be permitted the opportunity to consider
whether to dismiss this cause or to grant a thirty-day extension to cure the deficiencies in the
report. See Tex. Civ. Prac. & Rem. Code § 74.351(c); Leland v. Brandal, 257 S.W.3d 204, 207
(Tex. 2008).
CONCLUSION
We reverse the trial court’s order denying HMIH Cedar Crest, LLC d/b/a Cedar
Crest Hospital & RTC’s Objections to Chapter 74 Expert Report of Daniel Duhigg, DO, MBA,
because we agree that the trial court abused its discretion when it found the expert report
complied with statutory requirements for expert reports under Texas Civil Practice and Remedies
Code section 74.351. Rather than dismissing the cause, we remand for the trial court to consider
whether to dismiss the cause or to grant Buentello’s request for a thirty-day extension to cure
deficiencies in the report, as well as for other proceedings consistent with this opinion.
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__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Kelly
Dissenting opinion by Justice Baker
Reversed and Remanded
Filed: March 4, 2022
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