Almendra Fernandez, BS IONM, T-Med, L.P. D/B/aMonitoring Concepts And T-Med, L.P. v. Sylvia Gonzales

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00586-CV

Almendra Fernandez, BS, IONM; T-Med, L.P. d/b/a Monitoring Concepts;

and T-Med, L.P., Appellants

v.

Sylvia Gonzales, Appellee

FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-20-002575, THE HONORABLE JESSICA MANGRUM, JUDGE PRESIDING

MEMORANDUM OPINION

Almendra Fernandez and T-Med, L.P.1 bring this interlocutory appeal of the trial

court’s order denying their challenge to the sufficiency of Sylvia Gonzales’s expert reports in

her suit alleging health care liability claims. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9),

74.351. In four appellate issues, Fernandez and T-Med say that the expert reports fall short of the

requirements for articulating the applicable standard of care, Fernandez’s and T-Med’s alleged

breaches, and causation. We affirm.

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The live petition names T-Med as a defendant twice—once by itself and another time

“doing business as Monitoring Concepts.” No one before us disagrees that there is only one T-Med

involved in this case.

BACKGROUND

When Gonzales was 65 years old, she experienced pain in her neck, shoulders,

and upper arms. She was diagnosed with degenerative disc disease with central disc herniation

and opted to have surgery—a two-level cervical discectomy—to achieve some relief. A surgeon

performed the surgery with Fernandez, an intraoperative neurophysiological monitoring (IONM)

technician and alleged employee of T-Med, present for monitoring and another physician also

monitoring but from a remote location. In this role during the surgery, Fernandez was to watch

and interpret the data generated by devices monitoring Gonzales’s nervous system.

During the surgery and after the incision, the surgeon placed a cage near two of

Gonzales’s cervical vertebrae. Some of the IONM data—wave forms generated by the monitoring

devices—that Fernandez was to monitor then became abnormal, potentially signifying an injury.

After the surgery and while in recovery, Gonzales reported weakness in her right

hand and right leg and soon lost the ability to move them. She has since undergone extensive

physical, occupational, and speech therapy, but when discharged home, she needed a walker

for help moving, which she had not needed before. She alleges that she has not been the same

physically as she was before the surgery, “suffer[ing] and continu[ing] to suffer from significant

right-sided weakness and pain, unsteady gait, . . . limited mobility requiring a walker for

assistance, . . . [and] no useful function of her right” arm. She’s been told by a physician that she

“is permanently and severely disabled and not likely to experience any spontaneous recovery.”

She sued the surgeon; the remote monitoring physician; Fernandez; Fernandez’s

alleged employer, T-Med; and others. She alleged negligence health care liability claims and gross

negligence against the defendants and pleaded that T-Med is vicariously liable for Fernandez’s

acts and omissions. She timely served expert reports by Dr. Nicholas Theodore, a board-certified

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neurosurgeon; Dr. Stan Skinner, a physician and IONM practitioner; and Maureen Stokes, an

electrophysiologist who trains and supervises clinicians in IONM.

Fernandez and T-Med objected to the sufficiency of the expert reports and moved

to dismiss Gonzales’s claims against them. (They did not challenge the experts’ qualifications.)

The trial court overruled the objections and denied the motion to dismiss. Fernandez and T-Med

now bring this interlocutory appeal from that order.

APPLICABLE LAW AND STANDARD OF REVIEW

A claimant bringing a health care liability claim must serve each defendant to her

claim with an adequate expert report. See Tex. Civ. Prac. & Rem. Code § 74.351(a); E.D. ex rel.

B.O. v. Texas Health Care, P.L.L.C., 644 S.W.3d 660, 662, 664 (Tex. 2022) (per curiam). “A

report is adequate if it represents ‘an objective good faith effort’ to provide ‘a fair summary of the

expert’s opinion’ regarding the applicable standard of care, the [defendant]’s breach of that

standard, and the causal relationship between the breach and the harm alleged.” E.D. ex rel. B.O.,

644 S.W.3d at 662 (quoting Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6)). “One expert need

not address the standard of care, breach, and causation; multiple expert reports may be read

together to determine whether these requirements have been met.” Abshire v. Christus Health Se.

Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam) (citing Tex. Civ. Prac. & Rem. Code

§ 74.351(i)); see also Fitzpatrick v. Reale, No. 03-17-00465-CV, 2018 WL 1321535, at *4 (Tex.

App.—Austin Mar. 15, 2018, no pet.) (mem. op.) (expert-report requirement may be satisfied by

using more than one report).

When there are multiple defendants, the expert report or reports generally “must set

forth the standard of care for each defendant and explain the causal relationship between each

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defendant’s individual acts and the injury.” Seton Fam. of Hosps. v. White, 593 S.W.3d 787,

792 (Tex. App.—Austin 2019, pet. denied). But when a claimant has pleaded that a defendant

is vicariously liable for a health care liability claim, a report suffices to implicate that defendant

so long as it adequately implicates the actions of its agent or employee. See Baty v. Futrell,

543 S.W.3d 689, 694 n.5 (Tex. 2018); Gardner v. United States Imaging, Inc., 274 S.W.3d 669,

671–72 (Tex. 2008) (per curiam).

“An expert report demonstrates a ‘good faith effort,’ and is sufficient under the

statute, when it ‘(1) inform[s] the defendant of the specific conduct called into question and

(2) provid[es] a basis for the trial court to conclude the claims have merit.’” E.D. ex rel. B.O.,

644 S.W.3d at 664 (quoting Baty, 543 S.W.3d at 693–94). A report is not a good-faith effort

if it omits any of the statutory requirements. See HMIH Cedar Crest, LLC v. Buentello,

No. 03-20-00377-CV, 2022 WL 627226, at *2 (Tex. App.—Austin Mar. 4, 2022, no pet.) (mem.

op.). At the preliminary, expert-report stage, “whether the expert’s explanations are ‘believable’

is not relevant to the analysis of whether the expert’s opinion constitutes a good-faith effort.” E.D.

ex rel. B.O., 644 S.W.3d at 664 (quoting Abshire, 563 S.W.3d at 226).

To sufficiently articulate the standard of care, breach, or causation, conclusory

statements fall short of what the statute requires. See Columbia Valley Healthcare Sys., L.P. v.

Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017); HMIH Cedar Crest, 2022 WL 627226, at *2. An

expert’s opinion is conclusory when either (1) the expert asks the factfinder to take the expert’s

word that an opinion is correct but offers no basis for the opinion or (2) the expert offers only

the expert’s word that the bases offered to support an opinion exist or support the opinion.

HMIH Cedar Crest, 2022 WL 627226, at *2 (citing Windrum v. Kareh, 581 S.W.3d 761, 769 (Tex.

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2019)); see also Zamarripa, 526 S.W.3d at 461 (“[W]ithout factual explanations, the reports are

nothing more than the ipse dixit of the experts, which we have held are clearly insufficient.”).

If after the time has passed for the claimant to serve her adequate expert report

her purported report or reports are not adequate, the defendants may move to dismiss the claims

against them and seek their reasonable attorneys’ fees and costs. See Tex. Civ. Prac. & Rem.

Code § 74.351(b); E.D. ex rel. B.O., 644 S.W.3d at 664. A trial court’s denial of a challenge

to the adequacy of expert reports is reviewed for an abuse of discretion. See E.D. ex rel. B.O.,

644 S.W.3d at 662, 664; Abshire, 563 S.W.3d at 223. The adequacy inquiry is confined to the

four corners of the report or reports, taken as a whole. See E.D. ex rel. B.O., 644 S.W.3d at 664.

Because of the abuse-of-discretion standard, “[c]lose calls must go to the trial court.” Id. (internal

quotation omitted). Also under that standard, we defer to the trial court’s fact findings if they

are supported by evidence but review its legal conclusions de novo. Van Ness v. ETMC First

Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam).

DISCUSSION

In their first issue, Fernandez and T-Med maintain that the reports by Dr. Theodore,

Dr. Skinner, and Stokes “failed to provide a sufficient opinion on the applicable standard of care

as to Appellants and breach of that standard of care.” Their third issue is similar but focuses only

on the claims that T-Med is directly liable, instead of merely vicariously liable because of others’

acts or omissions: the “expert reports failed to provide a sufficient opinion on the applicable

standard of care as to T-Med . . . and breach of that standard.”

“In articulating the standard of care and breach, an expert report ‘must set forth

specific information about what the defendant should have done differently’; that is, ‘what care

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was expected, but not given.’” E.D. ex rel. B.O., 644 S.W.3d at 664 (quoting Abshire, 563 S.W.3d

at 226). Thus, an expert’s opinion that a hospital “did not take proper precautions to prevent a

patient from falling did not sufficiently address the standard of care because it failed to apprise the

parties of the specific conduct complained of—be it a failure to monitor more closely, restrain

more securely, or something else altogether.” Abshire, 563 S.W.3d at 226–27 (citing American

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001)). Merely

referring to general concepts of assessment, monitoring, or interventions is insufficient. HMIH

Cedar Crest, 2022 WL 627226, at *2. On the other hand, whether the standards of care that the

reports articulate “appear reasonable is not relevant to the analysis.” See Zachariah v. Durtschi,

No. 03-20-00394-CV, 2022 WL 1509303, at *7 (Tex. App.—Austin May 13, 2022, no pet.) (mem.

op.) (internal quotation omitted) (quoting Abshire, 563 S.W.3d at 226).

Stokes in her report explained the role of IONM during Gonzales’s surgery. IONM

is used “to identify signs of new or evolving functional neurologic compromise during the surgery

which can potentially be reversed.” She then explained that multiple methods, or “modalities,” of

IONM often should be used during a single surgery:

In general, these modalities can, and should, be used concurrently, depending on

the particular surgical procedure. The potential of false negatives and possibility

of incomplete assessment of the nervous system at risk are both greatly reduced by

monitoring two or more modalities concurrently. Multimodal neuromonitoring

relies on the strengths of the different types of neurophysiological modalities to

maximize the diagnostic efficacy, sensitivity and specificity in the detection of

impending neural injury.

For surgeries potentially affecting the spinal cord, like Gonzales’s, “the integrity of the spinal cord

is the chief consideration for modality selection,” for which the IONM “team is to select the most

meaningful and relevant of available . . . modalities for the given procedure.”

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Stokes explained particular IONM modalities and suggested that during Gonzales’s

surgery some were used and others were not or were misused. The modality of somatosensory

evoked potential (SSEP) “provides assessment of spinal cord integrity through the summated

neural signals that enter the spinal cord through the dorsal column-medial lemniscus pathway.”

She contrasted SSEP with electromyography (EMG), “which is most sensitive for disturbances of

nerve root function and is primarily concerned with the monitoring of spontaneous motor activity

in designated muscles of interest.” EMG often should be paired with “train of four” monitoring

(TOF), Stokes said. TOF “assess[es] neuromuscular transmission during surgery in the presence

of neuromuscular blocking agents as part of the anesthetic regime.” And it “indicates the level of

paralysis at the time of testing and should be used at several points in time during the surgical

procedure as an indicator of the usefulness of the EMG monitoring.” Finally, Stokes explained

that transcranial motor evoked potentials (tcMEP) is “a valuable monitoring tool during procedures

such as the one [here], as tcMEPs are an assessment of the spinal cord motor tracts, more

specifically of the anterior spinal cord and corticospinal tract.” Stokes suggested that Fernandez

used SSEP and EMG during Gonzales’s surgery but not tcMEP and did not get reliable TOF data.

With all this as background, Stokes identified acts and omissions by Fernandez

that Stokes opined fell below the applicable standard of care. She noted that there was SSEP

monitoring for “only one upper extremity nerve” on Gonzales and opined that “[m]ore information

on the status of the cervical cord would have been gained by also monitoring the median nerve of

the upper extremity.” She next said that the TOF monitor for the surgery flagged “an ALERT

event” but that while TOF “was attempted throughout the procedure,” Fernandez and others did

not obtain reliable TOF data “for unknown reasons.” Stokes faulted Fernandez for not correcting

for this: “There is no indication that tech Fernandez informed the remote physician or surgeon of

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unusable TOF data, attempted any technical troubleshooting or consulted with the anesthesiologist

to obtain reliable TOF or neuromuscular blockade information.” Stokes continued, “The lack of

TOF information puts into . . . question the sensitivity and usefulness of the EMG monitoring

throughout the surgical procedure.” She next opined that Fernandez “billed out” too few electrodes

during the monitoring: “The Technical Report indicates only 7 pairs of electrodes billed out, which

does not appear to be an adequate number of electrodes to properly monitor for this surgical case.”

Stokes identified still other features of the applicable standard of care and how

Fernandez fell short of them. Stokes opined, “The standard of care requires a neuromonitoring

technician to have a conversation, prior to a surgical procedure, with the surgeon and remote

monitoring physician with regard to the type of monitoring to occur, in order to ensure that

proper monitoring occurs for a specific surgical case.” Fernandez fell short of this because she

“documented no such conversation here, and there was no monitoring of the” tcMEPs. Plus, she

“failed to meet the standard of care by failing to have a conversation with [the surgeon] and [the

remote monitoring physician] to impart the significance of using [tc]MEPs for the planned cervical

procedures,” which “would have provided further data regarding neurologic changes, which would

have then alerted the surgeon to the neurologic problems occurring during the surgery.”

Next, Stokes noted that although SSEP was used during the surgery, Fernandez fell

below the standard of care by misusing, misunderstanding, or not communicating the SSEP data.

Stokes explained this in detail, after observing that close monitoring of changes in SSEP data can

reveal compromises to neurological pathways:

[I]t is critical for any such changes/abnormalities to be identified and

reported immediately. The standard of care requires a[ ]neuromonitoring

technician to mark with a cursor each waveform to indicate latency and amplitude

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values, and alert the surgeon and remote monitoring physician of changes or

degradation to the amplitude and latency of the waveform intraoperatively.

The standard of care requires that SSEPs must be acquired with an interval

of no more than three minutes between trials throughout the procedure. Then,

once a significant change is recognized (such as the greater than 50% decrease

in amplitude here), relevant monitoring updates and surgeon awareness and

acknowledgement must be made by the neuromonitoring technician approximately

every 3 minutes. Ms. Fernandez only marked 3 of the total 14–15 sets of data,

which is below the standard of care.

The standard of care requires surgeon notification when there is a 50%

decrease in amplitude compared to baseline, as there was here. Ms. Fernandez

failed to recognize that there were significant changes (decreased amplitude and

increased latency), during and immediately after insertion of the cage, which is a

violation of the standard of care. Ms. Fernandez further fell below the standard of

care by failing to immediately notify both [the surgeon] and [the remote monitoring

physician] of these changes intraoperatively. Failure to obtain reliable TOF data or

other neuromuscular blockade assessment which puts into question the reliability

and sensitivity of the spontaneous EMG monitoring is also below the standard of

care.

Dr. Skinner in his report endorsed and adopted all of Stokes’s statements. He specifically

reiterated that the applicable standard of care required Fernandez “to have a conversation with [the

surgeon] about the importance of having [tc]MEP monitoring in addition to the SSEP monitoring.”

He also noted that there is nothing in the relevant medical records to “show that th[e] significant

abnormalities” in Gonzales’s SSEP readings “were identified or discussed among” the surgeon,

the remote monitoring physician, and Fernandez.

These reports, we conclude, amount to an objective good-faith effort to provide a

fair summary of the opinions about the standard of care applicable to Fernandez and her alleged

breaches. See Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); E.D. ex rel. B.O., 644 S.W.3d

at 662. They set forth specific information about what Fernandez should have done differently—

what care was expected of her but not given. See E.D. ex rel. B.O., 644 S.W.3d at 664. They say

that she should have (1) monitored at least a second nerve, the median nerve of Gonzales’s arm,

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while using SSEP monitoring; (2) in the face of the unusable TOF data either told the physicians

about the problem, tried technical troubleshooting, or consulted with the anesthesiologist;

(3) “billed out” more than 7 electrodes; (4) either talked with the physicians about the lack of any

tcMEP monitoring as a component of appropriate monitoring for Gonzales’s surgery or performed

tcMEP monitoring; (5) marked more than 3 sets out of the total SSEP data; and (6) recognized the

significant changes in the SSEP data and told the physicians about the changes during the surgery.

See id. at 665–66 (holding that court of appeals erred by concluding that report fell short of

fair-summary standard on breach when report identified defendant’s breach as “failure to timely

and accurately evaluate” data about fetal heart rate “either personally or by making appropriate

inquiries of the attending nurse”); Zachariah, 2022 WL 1509303, at *8–9 (holding that trial court

did not abuse its discretion by overruling standard-of-care and breach challenges to report that

properly explained that defendant should have performed certain test and why test was needed to

meet standard of care).

We disagree with Fernandez and T-Med’s arguments that Stokes’s opinions are

conclusory or speculative. Stokes provided the bases for her opinions, including her years of

training and practice with IONM and her review of the relevant medical records with specific

reference to acts or omissions documented in them, and explanations for how the facts surrounding

Gonzales’s surgery supported the opinions. Stokes linked the background and purposes of IONM

generally and of the different monitoring modalities with how they work together to support

better outcomes for patients and explained why more modalities, and better use of the SSEP

modality’s data, were needed here. Stokes thus provided in her report more than just her

say-so about her opinions and their support. See Windrum, 581 S.W.3d at 769; HMIH Cedar Crest,

2022 WL 627226, at *2; see also E.D. ex rel. B.O., 644 S.W.3d at 666–67 (“[T]he court’s job at

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this stage is not to weigh the report’s credibility; that is, the court’s disagreement with the

expert’s opinion does not render the expert report conclusory. . . . [T]he court’s skepticism about

the expert’s opinion does not render it [conclusory].” (internal quotation omitted)).

Fernandez and T-Med specifically identify as conclusory Stokes’s statement that

no conversation involving Fernandez about the lack of tcMEP monitoring as a part of appropriate

monitoring for Gonzales’s surgery was documented. They argue that Stokes’s statement elsewhere

in her report that tcMEP was “declined” must mean that Fernandez did in fact discuss tcMEP with

the physicians. But this argument does not capture all of Stokes’s relevant opinions on the topic.

In full context, Stokes opined that Fernandez needed not simply to discuss tcMEP in general with

the physicians but particularly why tcMEP was appropriate for use with Gonzales:

Transcranial Motor Evoked Potentials (tcMEP) is also a valuable

monitoring tool during procedures such as the one Ms. Gonzales underwent, as

tcMEPs are an assessment of the spinal cord motor tracts, more specifically of the

anterior spinal cord and corticospinal tract.

....

The standard of care requires a neuromonitoring technician to have a

conversation, prior to a surgical procedure, with the surgeon and remote monitoring

physician with regard to the type of monitoring to occur, in order to ensure

that proper monitoring occurs for a specific surgical case. Ms. Fernandez

documented no such conversation here, and there was no monitoring of the

tcMEP[s]. . . . Ms. Fernandez failed to meet the standard of care by failing to have

a conversation with [the surgeon] and [the remote monitoring physician] to impart

the significance of using [tc]MEPs for the planned surgical procedures.

(Emphases added.) The full context shows that a conversation about only whether tcMEP would

be used would fall below Stokes’s articulation of the standard of care. Thus, the fact that tcMEP

was declined does not undermine Stokes’s opinions.

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Finally for standard of care and breach, Fernandez and T-Med argue that Stokes’s

opinions faulting Fernandez for not using tcMEP inappropriately charge Fernandez with a decision

that only a licensed physician could make. For this position they rely on Zamarripa, in which the

Supreme Court of Texas noted that because nurses may not practice medicine, a hospital defendant

“appear[ed] to be correct” that it could not be faulted for its nurses’ having permitting a patient

transfer because that was a decision only a licensed physician could make. See 526 S.W.3d at 461

& n.36. Zamarripa references the statutory definition of “practicing medicine”—“the diagnosis,

treatment, or offer to treat a mental or physical disease or disorder . . . or injury.” Id. at 461 n.36

(internal quotation omitted) (quoting Tex. Occ. Code § 151.002(a)(13)). But Fernandez and

T-Med have not shown why the choice to use a certain modality of IONM to monitor a

patient during a surgery constitutes the practice of medicine. See, e.g., Baker v. Chapa,

No. 13-18-00667-CV, 2020 WL 7251866, at *4 (Tex. App.—Corpus Christi–Edinburg Dec. 10,

2020, no pet.) (mem. op.) (expert reports did not require practice of medicine by non-physician:

“[T]he expert reports identify specific actions that do not require diagnosis or treatment. While

Baker is not authorized to order a cesarean section or to perform the operation, she is not prohibited

from taking actions to ensure that the procedure can be accomplished in a timely manner.” (internal

citation omitted) (citing Tex. Occ. Code § 151.002(a)(13))); Columbia Valley Healthcare Sys.,

L.P. v. Guerrero, No. 13-18-00382-CV, 2020 WL 6789341, at *6 (Tex. App.—Corpus Christi–

Edinburg Nov. 19, 2020, no pet.) (mem. op.) (expert report did not fault hospital or nurses for acts

or omissions that would constitute practice of medicine because expert “did not propose a standard

of care that required the nursing staff to diagnose or treat a mental or physical disease or disorder”

(citing Tex. Occ. Code § 151.002(a)(13))); cf. Methodist Hosp. v. German, 369 S.W.3d 333, 342–

43 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (report improperly faulted nurses for not

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taking action that would have constituted practice of medicine: analyzing nature and cause of

patient’s condition from among patient’s symptoms, as distinct from merely reporting those

symptoms, is diagnosing).

In all, we hold that the trial court was within its discretion to decide that Stokes’s

and Dr. Skinner’s reports provide sufficient information about the standard of care applicable to

Fernandez and her alleged breaches and so represent a good-faith effort at a fair summary. See

Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); E.D. ex rel. B.O., 644 S.W.3d at 662, 664. We

thus overrule Fernandez and T-Med’s first issue. And because the theory that T-Med is vicariously

liable for Fernandez’s acts and omissions is fully supported by the reports’ statements about

Fernandez, we need not reach Fernandez and T-Med’s third issue, which concerns T-Med’s direct

liability. See Tex. R. App. P. 47.1; Baty, 543 S.W.3d at 694 n.5; Gardner, 274 S.W.3d at 671–72.

In their second issue, Fernandez and T-Med challenge causation: the “expert reports

failed to adequately set forth a causal chain linking any alleged harm actually suffered to a specific

breach of an applicable standard of care by Appellants.” And as with their third issue, their

fourth concerns causation only for T-Med’s alleged direct liability: the “expert reports failed to

adequately set forth a causal chain linking any alleged harm actually suffered to a specific breach

of an applicable standard of care by” T-Med.

Causation here refers to whether a breach “was a substantial factor in bringing about

the harm and without which the harm would not have occurred.” Zachariah, 2022 WL 1509303,

at *4 (internal quotation omitted). An expert report must “explain ‘how and why’ the alleged

negligence caused the injury in question.” Id. (internal quotation omitted) (quoting Abshire,

563 S.W.3d at 224). “In satisfying this ‘how and why’ requirement, the expert need not prove the

entire case or account for every known fact; the report is sufficient if it makes ‘a good-faith effort

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to explain, factually, how proximate cause is going to be proven.’” Id. (internal quotation omitted)

(quoting Abshire, 563 S.W.3d at 224). “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.” HMIH Cedar Crest, 2022 WL 627226, at *2. “[W]ith respect to causation, the court’s

role is to determine whether the expert has explained how the negligent conduct caused the injury”;

“[w]hether this explanation is believable should be litigated at a later stage of the proceeding.”

Zachariah, 2022 WL 1509303, at *4 (internal quotations omitted) (quoting Abshire, 563 S.W.3d

at 226). Only physicians may render causation opinions in the required expert report. See Tex.

Civ. Prac. & Rem. Code § 74.351(r)(5)(C).

Dr. Skinner’s report addressed causation by explaining two chains of events,

stemming, respectively, from Fernandez’s not using tcMEP during the surgery and from her not

telling the physicians during the surgery about the significant changes shown in the SSEP data:

If there is an injury, then there is a disruption or documented change in the

[tc]MEP readings. Within a reasonable degree of certainty, the [tc]MEPs would

have provided an even more extreme change in the patient’s condition. Or, at least,

[tc]MEPs would have provided redundant and corresponding results, permitting

more certain recognition of a major spinal cord conduction block. Thereafter, the

incipient damage done could have been reported to the surgeon for an immediate

intervention, which is removal of the device or consider cessation of the effort to

place the cage followed by recovery of normal IONM waveforms.

....

A detectible abnormality occurred immediately after placement of the cage

began. However, because [the remote monitoring physician] and Ms. Fernandez

failed to detect and report the abnormality to the surgeon, [the surgeon] proceeded

with the surgery, continuing to manipulate the cage in the same

area. . . . [C]ontinued manipulation without immediate removal of the cage caused

neurologic injury to the patient. Prior to surgery, she was able to use her right upper

and lower extremities. Immediately following the surgery (wherein the SSEP data

demonstrated neurologic injury after placement of the cage), Ms. Gonzales was

unable to move her right upper and lower extremities.

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Dr. Skinner’s report thus identifies two chains of events beginning with points identified in

Stokes’s report as alleged breaches of the applicable standard of care—Fernandez’s (1) neither

talking with the physicians about the lack of tcMEP monitoring as a component of appropriate

monitoring for Gonzales’s surgery nor performing tcMEP monitoring and (2) not recognizing the

significant changes in the SSEP data or telling the physicians about the changes during the surgery.

Dr. Skinner’s chains of events articulate causation. See HMIH Cedar Crest, 2022 WL 627226,

at *2. This means that his report is to an objective good-faith effort to provide a fair summary

of his opinions about causation. See Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); E.D. ex rel.

B.O., 644 S.W.3d at 662.

Fernandez and T-Med base many of their arguments about the insufficiency of

Dr. Skinner’s report on this statement made in Dr. Theodore’s report: “Once there is a contusion

or damage to the spinal cord, it can cause serious injury and paralysis in specific portions of the

body, based on the area of the spinal cord which has been contused.” Fernandez and T-Med

then refer to Dr. Skinner’s statement that a “detectible abnormality” in the SSEP data “occurred

immediately after placement of the cage began.” From these statements, they argue that it must

have only been the surgeon’s initial placement of the cage which injured Gonzales and that nothing

Fernandez allegedly did wrong could have altered the surgeon’s injuring-causing act.

But this view misses some of the physicians’ relevant opinions. Dr. Theodore

allowed for the possibility that “any contusion or compression” of the spinal cord “can lead to

extremity weakness and permanent paralysis.” And Dr. Skinner opined that more than just the

initial placement of the cage injured Gonzales: “the incipient damage done could have been

reported to the surgeon for an immediate intervention, which is removal of the device or consider

cessation of the effort to place the cage followed by recovery of normal IONM waveforms,” and

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“continued manipulation without immediate removal of the cage caused neurologic injury to the

patient.” (Emphases added.) The experts thus did not opine that the initial placement of the cage

was the only act that injured Gonzales. Dr. Skinner explained a chain of events beginning either

with the lack of tcMEP data or with the lack of recognizing and reporting the danger shown by the

SSEP data, continuing with the failure to recognize injury upon initial cage placement and

continuing the surgery despite the injury, and ending with Gonzales’s injuries.2

We therefore hold that the trial court was within its discretion to decide that

Dr. Skinner’s report provides sufficient information about causation and so represents a good-faith

effort at a fair summary. See Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); E.D. ex rel. B.O.,

644 S.W.3d at 662, 664. His causation opinions were not conclusory or speculative: his report

explained the medical records that he reviewed, his background and experience, and the facts that

support how and why Fernandez’s alleged breaches led to Gonzales’s injuries. See Windrum,

581 S.W.3d at 769; HMIH Cedar Crest, 2022 WL 627226, at *2; see also E.D. ex rel. B.O.,

644 S.W.3d at 666–67 (“[T]he court’s job at this stage is not to weigh the report’s credibility;

that is, the court’s disagreement with the expert’s opinion does not render the expert report

conclusory. . . . [T]he court’s skepticism about the expert’s opinion does not render it

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Fernandez and T-Med analogize this case to Intra-Op Monitoring Services, LLC v.

Causey, No. 09-12-00050-CV, 2012 WL 2849281 (Tex. App.—Beaumont July 12, 2012, no pet.)

(mem. op.), but the analogy does not hold because the Causey expert report’s “entire explanation

concerning” causation was simply: “Based on the review of the medical records made available

to me, it is my opinion that the Plaintiff’s injuries/damages were proximately caused in whole

or in part by the failure of [defendants] to follow the applicable standard of care.” Id. at *2.

Dr. Skinner’s report goes beyond the Causey expert’s. While the Causey expert did not reveal

what information the defendants should have told the surgeon before she cut the plaintiff’s facial

nerve, see id., Dr. Skinner’s report ties alleged breaches identified by Stokes to Gonzales’s injuries.

For example, Dr. Skinner opined that if Fernandez had communicated the change in SSEP data to

the surgeon, “continued manipulation” near Gonzales’s spinal cord would have stopped, thereby

preventing her injuries.

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[conclusory].” (internal quotation omitted)). An expert report adequate on even just “one theory

only . . . entitles the claimant to proceed” with her suit. Zachariah, 2022 WL 1509303, at *3

(internal quotation omitted) (quoting Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex.

2013)). We thus overrule Fernandez and T-Med’s second issue. As with their third issue, we need

not reach their fourth, which concerns causation relating only to T-Med’s direct liability. See Tex.

R. App. P. 47.1; Baty, 543 S.W.3d at 694 n.5; Gardner, 274 S.W.3d at 671–72.

SANCTIONS

In a cross-point, Gonzales asks that we award her damages as sanctions for

Fernandez and T-Med’s having filed a frivolous appeal. See Tex. R. App. P. 45. We overrule the

cross-point. See Jones v. Heslin, No. 03-20-00008-CV, 2020 WL 4742834, at *6 (Tex. App.—

Austin Aug. 14, 2020, pet. denied) (mem. op.) (concluding that sanctions were inappropriate in

part because court’s sanctions authority “is a matter of discretion” to be “exercise[d] with prudence

and caution and only after careful deliberation” and in part because “sanctions are unwarranted

when party had a reasonable expectation of reversal” (internal quotations omitted) (quoting

Caldwell v. Zimmerman, No. 03-17-00273-CV, 2017 WL 4899447, at *3 (Tex. App.—Austin

Oct. 26, 2017, pet. denied) (mem. op.), and citing Easter v. Providence Lloyds Ins. Co., 17 S.W.3d

788, 792 (Tex. App.—Austin 2000, pet. denied))).

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CONCLUSION

We affirm the trial court’s order.

__________________________________________

Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Kelly and Smith

Affirmed

Filed: August 26, 2022

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