Court of Appeals of Texas, Second District, Fort Worth
COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY L.P. AKA/DBA MEDICAL CENTER OF ARLINGTON APPELLANT
THE 96TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER and PITTMAN, JJ.; CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
CHARLES BLEIL, JUSTICE
case involving alleged sexual misconduct by a nurse against a
patient, Columbia Medical Center of Arlington Subsidiary L.P.
d/b/a Medical Center of Arlington (MCA) brings an
interlocutory appeal from the trial court's April 11,
2017 order overruling its motion objecting to the patient
L.M.'s revised expert report and seeking dismissal of
L.M.'s claims. See Tex. Civ. Prac. & Rem.
Code Ann. § 51.014(a)(9) (West Supp. 2017), §
74.351(b)(2) (West 2017). MCA contends in a single issue that
the trial court erred (1) by granting L.M. an extension to
cure deficiencies in her original expert report because it
was so lacking in substance that it was no report at all, (2)
by overruling its objections to L.M.'s original report
and a revised report that she timely filed after the
extension, and (3) by "denying [its] motions to
dismiss." Because we conclude that L.M.'s original
proffered report was deficient but curable and that
L.M.'s revised expert report is not deficient, we affirm
the trial court's denial of MCA's second motion to
Background Facts And Procedural History
sued nurse Gerald Thomas Cagle, Staff Quest Plus, his
staffing agency employer, and MCA for common law negligence
and health care liability under chapter 74 of the Texas Civil
Practice and Remedies Code. L.M. alleged that after she went
to MCA's emergency room complaining only of chest pain,
Cagle--without obtaining a doctor's order and without
following established protocol or policy--performed an
unnecessary invasive catheterization (an
"in-and-out" catheterization) and after doing so,
performed an unnecessary and also unordered digital vaginal
examination. L.M. alleged that MCA was vicariously
liable for Cagle's conduct and that it had negligently
trained, instructed, and supervised Cagle.
timely filed documents purporting to constitute an expert
report: a transcript of sworn testimony during a Texas Board
of Nursing hearing by nurse Denise Benbow concerning
Cagle's conduct; Benbow's curriculum vitae (CV); an
administrative law judge's (ALJ) recommendation to the
Board that Cagle's license be revoked; and an opinion and
order of the Board revoking Cagle's license prepared by
nurse Katherine A. Thomas. MCA objected to the documents on
numerous grounds, including that the documents constituted
either no report at all or a deficient report, and filed a
motion to dismiss alleging the same grounds it raised in its
objections. At a hearing on its objections and motion,
MCA's counsel argued, "[A]ll they've done is
they've pieced together documents from Nurse Cagle's
Texas Board of Nursing ALJ hearing and have attempted to
repurpose same as an expert report." Instead of ruling
at the hearing, the trial court took the matter under
weeks later, on October 26, 2016, the trial court signed an
order finding that "the expert report [was]
deficient" and granting L.M. a thirty-day extension to
cure the deficiencies. See id. § 74.351(c),
(r)(6). The order did not expressly deny the motion to
dismiss. MCA did not appeal from this order.
timely filed a "Revised Chapter 74 Expert Report, "
which included a "Medical Review Report" by Dr.
Lola Lumpkins along with her CV. MCA objected to Dr.
Lumpkins's expert report on the grounds that her
causation opinion is conclusory and that she improperly
relied on the causation opinions of Benbow, Thomas, and the
ALJ instead of making an independent causation determination.
MCA also again sought dismissal based on Dr. Lumpkins's
allegedly-deficient expert opinion. MCA alternatively argued
in this second motion to dismiss that the trial court should
have granted its first motion to dismiss because the
documents L.M. originally filed constituted no report at all;
thus, the trial court erred by granting L.M. a thirty-day
extension. After a hearing, the trial court overruled
MCA's objections to Dr. Lumpkins's expert report and
denied MCA's second motion to dismiss. MCA appealed.
Complaints On Appeal
single issue, MCA raises the following complaints:
• the documents L.M. originally served did not
constitute a "'written report' providing a
'fair summary' of an expert's opinions on the
standards of care, breach, and causation particular to this
• even if the documents could be considered an expert
report, they were so deficient that they were no report at
all because (a) they did not contain a physician's
causation opinion, (b) Benbow, Thomas, and the ALJ are not
qualified to opine about the standard of care and breach, and
(c) even if they are qualified, their opinions about the
standard of care and breach are conclusory;
• Dr. Lumpkins's report is deficient as to
L.M.'s vicarious liability claim because her causation
opinion is conclusory and she improperly relied on
Benbow's, Thomas's, and the ALJ's causation
opinions contained in the first proffered report; and
• because Dr. Lumpkins's report is deficient as to
vicarious liability and because neither the original report
nor Dr. Lumpkins's report addressed any direct liability
claims against MCA, L.M. failed to file an adequate expert
report on any of her claims.
L.M. has not argued in this court or the trial court that her
allegations against MCA do not fall within chapter 74's
scope, we will review only whether the trial court abused its
discretion by denying MCA's second motion to dismiss
under section 74.351's applicable law. See,
e.g., Loaisiga v. Cerda, 379 S.W.3d 248, 257
(Tex. 2012) (setting out three-part test for rebutting
presumption that claim against health care provider is a
section 74.351 health care liability claim); Murphy v.
Russell, 167 S.W.3d 835, 838-39 (Tex. 2005) (holding
that medical battery claim required expert report under
former article 4590i because expert testimony necessary
regarding whether health care provider had any reasons for
performing unconsented-to procedure that did not breach
standard of care); T.C. v. Kayass, No.
02-16-00248-CV, 2017 WL 5180773, at *2, *6 (Tex. App.--Fort
Worth Nov. 9, 2017, no pet.) (holding that claim against
doctor for alleged sexual assault of mother during her
children's appointment was not a health care liability
claim for which an expert report must be filed); Appell
v. Muguerza, 329 S.W.3d 104, 109-13 (Tex. App.--Houston
[14th Dist.] 2010, pet. denied) (concluding that part of
claim sounding only in assault was not a health care
liability claim for which an expert report is required but
also citing cases holding that alleged sexual assaults of
patients during course of medical examination were
inseparable from rendition of medical care), abrogated in
part on other grounds by Tex. W. Oaks Hosp. v. Williams,
371 S.W.3d 171, 184-86 (Tex. 2012); Vanderwerff v.
Beathard, 239 S.W.3d 406, 409 (Tex. App.--Dallas 2007,
no pet.) (concluding that expert report was required in claim
that chiropractor sexually touched patient during examination
when expert testimony was necessary to establish proper
standard of care for examination for patient's particular
review a trial court's denial of a motion to dismiss
under section 74.351(b) for an abuse of discretion. Van
Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex.
2015); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court
abuses its discretion if the court acts without reference to
any guiding rules or principles, that is, if the act is
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d
609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d
835, 838-39 (Tex. 2004). An appellate court cannot conclude
that a trial court abused its discretion merely because the
appellate court would have ruled differently in the same
circumstances. Low, 221 S.W.3d at 620; E.I. du
Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995).
L.M.'s First Report Was Deficient But Curable
issue on appeal includes several complaints related to its
alternative argument in its second motion to dismiss: that
the documents L.M. filed as her original expert report were
so deficient that they constituted no report at all and that
the trial court therefore erred by extending the time for her
to file a report to correct the deficiencies. A complaint
that a report is so deficient that it is tantamount to no
report at all is immediately appealable upon the trial
court's denial of a motion to dismiss raising that ground
even if the plaintiff has already filed an amended report in
accordance with an order extending the time to do so. See
Scoresby v. Santillan, 346 S.W.3d 546, 555, 557 (Tex.
2011); In re Watkins, 279 S.W.3d 633, 634 (Tex.
2009) (orig. proceeding); Badiga v. Lopez, 274
S.W.3d 681, 684-85 (Tex. 2009); see also Tex. Civ.
Prac. & Rem. Code Ann. §§ 51.014(a)(9),
74.351(b). Here, the trial court's October 26, 2016 order
found the documents L.M. served as her first report deficient
and granted L.M. thirty days to file a new report but ...