PINNACLE HEALTH FACILITIES XV, LP D/B/A WOODRIDGE NURSING AND REHABILITATION, Appellant
JORGE ROBLES AND WERNER ROBLES, INDIVIDUALLY AND AS HEIRS OF ZOILA ROBLES, Appellees
Appeal from the 55th District Court Harris County, Texas
Trial Court Cause No. 2015-11057
consists of Justices Busby, Donovan, and Wise.
issued our opinion in this case on December 15, 2016.
Thereafter, Jorge Robles and Werner Robles, individually and
as heirs of Zoila Robles, (collectively
"appellees") filed a motion for en banc
reconsideration. Pinnacle Health Facilities XV, LP d/b/a
Woodridge Nursing and Rehabilitation ("appellant")
filed a response. We withdraw our previous opinion, vacate
our previous judgment, and issue this substitute opinion and
judgment. Appellees' motion is denied as moot.
Health Facilities XV, LP d/b/a Woodridge Nursing and
Rehabilitation ("appellant") appeals from the trial
court's denial of its motion to dismiss. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West
Supp. 2010). Finding the expert report insufficient, we
reverse and remand.
filed a health care liability claim alleging Zoila Robles
("Robles") suffered injuries and died as a result
of a faulty sling transfer from her geri-chairto her bed at
Woodridge Rehabilitation Center. Pursuant to section 74.351
of the Texas Civil Practices and Remedies Code, appellees
served appellant with the expert report of Christopher Davey,
M.D. Appellant objected to his original report, prompting
appellees to file and serve an amended expert report by
Davey. Appellant again objected. In order to obtain a ruling
on appellant's objections to allow discovery to proceed,
appellees filed a motion to overrule appellant's
objections. Following a hearing, the trial judge granted that
motion. Appellant then filed a motion to reconsider and
motion to dismiss. From the trial court's order denying
the motion to dismiss, appellant initiated this interlocutory
Standard Of Review And Applicable Law
Texas Medical Liability Act ("the Act") entitles a
defendant to dismissal of a health care liability claim if he
is not served with an expert report showing that the claim
has merit within 120 days of the date suit was filed. Tex.
Civ. Prac. & Rem. Code § 74.351(b); Scoresby v.
Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial
court's refusal to dismiss may be immediately appealed.
Tex. Civ. Prac. & Rem. Code § 51.014(a)(9);
Scoresby, 346 S.W.3d at 549. We review a trial court's
denial of a motion to dismiss under section 74.351 for abuse
of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539
(Tex. 2010); Group v. Vicento, 164 S.W.3d 724, 727
(Tex. App.-Houston [14th Dist.] 2005, pet. denied). A trial
court abuses its discretion if it acts in an unreasonable or
arbitrary manner or without reference to any guiding rules or
principles. Larson v. Downing, 197 S.W.3d 303,
304-05 (Tex. 2006); see also Jelinek, 328
S.W.3d at 539. When reviewing these matters, "a court of
appeals may not substitute its own judgment for the trial
court's judgment." Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002). A trial court does
not abuse its discretion merely because it decides a
discretionary matter differently than an appellate court
would in a similar circumstance. Gray v. CHCA Bayshore
L.P., 189 S.W.3d 855, 858 (Tex. App.- Houston [1st
Dist.] 2006, no pet.).
specifies requirements for an adequate report and mandates
"an objective good faith effort to comply" with the
requirements. Tex. Civ. Prac. & Rem. Code §
74.351(l), (r)(6); Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 141 (Tex. 2015). The report
must fairly summarize (1) the applicable standard of care,
(2) a breach of that standard, and (3) causation. See Van
Ness, 461 S.W.3d at 141; Tex. Civ. Prac. & Rem. Code
§ 74.351(r)(6). Further, a report must provide enough
information to fulfill two purposes: (1) inform the defendant
of the specific conduct that the plaintiff has called into
question, and (2) provide a basis for the trial court to
conclude that the claims have merit. Univ. of Tex. Med.
Branch v. Railsback, 259 S.W.3d 860, 863 (Tex.
App.-Houston [1st Dist.] 2008, no pet.).
must grant a motion challenging the adequacy of a report if
it is not "an objective good faith effort to comply with
the definition of an expert report in Subsection
(r)(6)." Tex. Civ. Prac. & Rem. Code §
74.351(l). When a report does not fairly summarize
the three elements or provide enough information to fulfill
the two purposes above, it is not considered an
"objective good faith effort" to comply with the
statute. Scoresby, 346 S.W.3d at 555-56. A report
that merely states the expert's conclusions also does not
amount to a good faith effort. Am. Transitional Care
Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879
(Tex. 2001). The expert must explain the basis for his
statements and must link his conclusions to the facts.
Jelinek, 328 S.W.3d at 539. It is not necessary, however, for
the plaintiff to assemble all his proof or present evidence
in the report as if he were in fact litigating the merits.
Palacios, 46 S.W.3d at 879.
"good-faith effort" provides sufficient information
to inform the defendant of the specific conduct the plaintiff
has called into question and provides a basis for the trial
court to conclude that the claims have merit. Van
Ness, 461 S.W.3d at 141; Patel v. Williams, 237
S.W.3d 901, 904 (Tex. App.-Houston [14th Dist.] 2007, no
pet.). When determining if a good faith effort has been made,
the trial court is limited to the four corners of the report
and cannot consider extrinsic evidence. See Bowie
Mem'l Hosp., 79 S.W.3d at 52; Palacios, 46
S.W.3d at 878.
single issue, appellant questions whether the trial court
erred in denying the motion to dismiss after appellees failed
to serve an amended expert report that complies with Chapter
74. See Tex. Civ. Prac. & Rem. Code §
74.351(l), (r)(6). Specifically, appellant claims the amended
expert report failed to provide any specific factual
information as to how appellant breached its standards of
care and simply assumes a breach occurred by virtue of
Robles' fall. Further, appellant contends the amended