Court of Appeals of Texas, Ninth District, Beaumont
CLINT L. HINES, INC. D/B/A SHADY ACRES HEALTH AND REHABILITATION CENTER, AND SHADY ACRES HEALTH AND REHABILITATION CENTER, Appellants
TOM DAVIS, AS NEXT FRIEND FOR DOROTHEA DAVIS, Appellee
Submitted on March 2, 2017
Appeal from the 1A District Court Newton County, Texas Trial
Cause No. 13977
McKeithen, C.J., Kreger and Horton, JJ.
McKEITHEN Chief Justice.
interlocutory appeal concerns the adequacy of an expert
report under the standards that apply to health care
liability claims. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 51.014(a)(9), 74.351 (West Supp.
2016). Appellee Tom Davis, as next friend for his aunt,
Dorothea Davis ("Dorothea"), filed a health care
liability claim against appellants Clint L. Hines, Inc.
d/b/a/ Shady Acres Health and Rehabilitation Center, and
Shady Acres Health and Rehabilitation Center ("Shady
Acres"), which provided long-term care to Dorothea.
Shady Acres objected to Davis's expert report and moved
to dismiss the lawsuit pursuant to section 74.351 of the
Civil Practice and Remedies Code. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(b). The trial court
overruled Shady Acres's objections and denied its motion
to dismiss. Shady Acres challenges the trial court's
denial of its motion to dismiss. See id. §
51.014(a)(9) (West Supp. 2016). We reverse and remand.
of Review and Applicable Law
74.351 requires a health care liability claimant to timely
file sufficient expert reports. See Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a), (l). When
considering a motion to dismiss for failure to comply with
section 74.351, the trial court must determine
"whether 'the report' represents a good-faith
effort to comply with the statutory definition of an expert
report." Bowie Mem'l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002) (citing Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
878 (Tex. 2001)); see also Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(a), (l). Section 74.351
defines an "expert report" as follows:
[A] written report by an expert that provides a fair summary
of the expert's opinions as of the date of the report
regarding 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
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
"Because the statute focuses on what the report
discusses, the only information relevant to the inquiry is
within the four corners of the document."
Palacios, 46 S.W.3d at 878; see also
Wright, 79 S.W.3d at 52.
report need not marshal all the plaintiff's proof, but it
must include the expert's opinion on each of the elements
identified in the statute." Palacios, 46 S.W.3d
at 878; see also Wright, 79 S.W.3d at 52. An expert
report constitutes a good-faith effort when the expert sets
out his opinions on the standard of care, breach, and
causation with enough specificity to: (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 that the claims have merit."
Palacios, 46 S.W.3d at 879; see also
Wright, 79 S.W.3d at 52. "'[T]he expert must
explain the basis of his statements to link his conclusions
to the facts.'" Wright, 79 S.W.3d at 52
(quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.
1999)). "A report that merely states the expert's
conclusions about the standard of care, breach, and causation
does not fulfill these two purposes." Palacios,
46 S.W.3d at 879. "Nor can a report meet these purposes
and thus constitute a good-faith effort if it omits any of
the statutory requirements." Id. Regarding
claims of vicarious liability, an expert report is sufficient
when it "adequately implicates the actions of that
party's agents or employees[.]" Gardner v. U.S.
Imaging, Inc., 274 S.W.3d 669, 671-72 (Tex. 2008).
"The report can be informal in that the information in
the report does not have to meet the same requirements as the
evidence offered in a summary-judgment proceeding or at
trial." Palacios, 46 S.W.3d at 879.
review a trial court's ruling on a motion to dismiss
pursuant to section 74.351 under an abuse-of-discretion
standard. Wright, 79 S.W.3d at 52;
Palacios, 46 S.W.3d at 878. "A trial court
abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or
principles." Wright, 79 S.W.3d at 52. We may
not substitute our own judgment for the trial court's
sole issue on appeal, Shady Acres argues that Dr. David
Seignious is not qualified as an expert under section 74.402
of the Civil Practice & Remedies Code. Shady Acres
complains that the report does not show Seignious is familiar
with the standard of care for non-physician health care
providers such as Shady Acres. Shady Acres argues that
Seignious has not shown himself to be qualified to give
opinions regarding the standards of care applicable to
nursing homes or regarding Shady Acres's staffing.
person may qualify as an expert on whether a health care
provider departed from accepted ...