the 278th District Court Walker County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins.
issue, appellant, Texas Home Health Skilled Services, L.P.,
argues that the trial court erred in refusing to dismiss a
wrongful-death and survival lawsuit brought by appellee, Judy
Anderson, individually and as representative of the estate of
Elizabeth Timmons, deceased, because Anderson failed to serve
compliant expert reports. This is the second time that
appellant has challenged the trial court's refusal to
dismiss this lawsuit for Anderson's purported failure to
serve compliant expert reports. See generally Tex. Home
Health Skilled Servs., L.P. v. Anderson, No.
10-15-00440-CV, 2016 Tex.App. LEXIS 11319 (Tex. App.-Waco
Oct. 19, 2016, no pet.) (mem. op.). We once again conclude
that Anderson's expert reports are insufficient as to
causation. Accordingly, we reverse the trial court's
order denying dismissal, render judgment dismissing
Anderson's claims against appellant, and remand to the
trial court for determination of reasonable attorney's
fees and court costs. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(b) (West 2017).
first iteration of this dispute, we recited the underlying
facts. See Anderson, 2016 Tex.App. LEXIS 11319, at
**1-4. As a brief summary, we highlight that Anderson filed a
wrongful-death and survival suit against numerous parties,
including appellant, on April 2, 2015. Id. at *1.
With respect to appellant, Anderson asserted negligence,
vicarious-liability, and gross-negligence claims pertaining
to the death of Timmons. Id. Anderson served on
appellant expert reports drafted by Paul O. Warshawsky, M.D.
and Lori Rozas, R.N. Id. at **4-5. Appellant
challenged the sufficiency of Anderson's expert reports.
The trial court determined that Anderson's expert reports
were sufficient and, therefore, denied a motion to dismiss
filed by appellant. Id. at **5-6.
appeal, we reversed the trial court's denial of
appellant's motion to dismiss, concluding that
Anderson's expert reports were insufficient as to
causation. Id. at **30-31. Specifically, we noted
A review of Dr. Warshawsky's expert reports reveals that
dehydration was the cause of Timmons' death; however, he
failed to explain how Timmons' subdural hematoma was a
substantial factor in her death from dehydration. Because
Anderson's expert reports fail to connect the occurrence
of the subdural hematoma to Timmons' death, we conclude
that Anderson's expert reports are insufficient on the
element of causation.
Id. at **30-31. However, despite the foregoing, we
further concluded that Anderson's expert reports were not
"so deficient as to constitute no report at all."
Id. at *31 (citing Gardner v. U.S. Imaging,
Inc., 274 S.W.3d 669, 670 (Tex. 2008); Leland v.
Brandal, 257 S.W.3d 204, 207-08 (Tex. 2008)). As such,
we remanded the matter for the trial court to determine
whether the deficiency in Anderson's expert reports could
be cured, and thus, whether to grant an extension of time to
cure. Id. at *32 (citing Samlowski v.
Wooten, 332 S.W.3d 404, 411-13 (Tex. 2011) (noting that
the trial court is in the best position to decide whether a
cure is feasible)).
remand, Anderson filed a motion for a thirty-day extension of
time to provide an amended expert report as to the causation
element. The trial court granted Anderson's motion, and
Anderson subsequently served Dr. Warshawsky's
supplemental expert report on appellant. Thereafter,
appellant filed a motion to dismiss Anderson's lawsuit
for failure to serve an adequate expert report. The trial
court denied appellant's motion to dismiss, and this
accelerated, interlocutory appeal followed. See Tex.
Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West
Supp. 2016) (authorizing an interlocutory appeal from the
denial of "all or part of the relief sought by a motion
under Section 74.351(b), except that an appeal may not be
taken from an order granting an extension under Section
74.351 . . . .").
Standard of Review
review all rulings related to Section 74.351 of the Texas
Civil Practice and Remedies Code under an abuse-of-discretion
standard. Jelinek v. Casas, 328 S.W.3d 526, 538-39
(Tex. 2010); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001). Although we
defer to the trial court's factual determination, we
review questions of law de novo. See Haskell v. Seven
Acres Jewish Senior Care Servs., Inc., 363 S.W.3d 754,
757 (Tex. App.-Houston [1st Dist.] 2012, no pet.); see
also Hillcrest Baptist Med. Ctr. v. Dixon, No.
10-12-00396-CV, 2013 Tex.App. LEXIS 8565, at **4-5 (Tex.
App.- Waco July 11, 2013, no pet.) (mem. op.). A trial court
has no discretion in determining what the law is, which law
governs, or how to apply the law. See Poland v. Orr,
278 S.W.3d 39, 45 (Tex. App.-Houston [1st Dist.] 2008, pet.
denied); see also Dixon, 2013 Tex.App. LEXIS 8565,
at *5. An abuse of discretion occurs if the trial court fails
to correctly apply the law to the facts or if it acts in an
arbitrary or unreasonable manner without reference to guiding
rules or principles. Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002); see
Haskell, 363 S.W.3d at 757 (citing Petty v.
Churner, 310 S.W.3d 131, 134 (Tex. App.- Dallas 2010, no
plaintiff who asserts a health-care-liability claim, as
defined by Chapter 74, must provide each defendant physician
or health-care provider with an expert report which provides
"a fair summary of the expert's opinions" as of
the date of the report regarding the applicable standards of
care, the manner in which the care rendered failed to meet
the applicable standards, and the causal relationship between
that failure and the claimed injury. See Tex. Civ.
Prac. & Rem. Code Ann. § 74.351(a), (r)(6); see
also Dixon, 2013 Tex.App. LEXIS 8565, at **5-6.
"The purpose of the expert report requirement is ...