Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 370th District Court of Hidalgo County,
Justices Rodriguez, Contreras, and Hinojosa
interlocutory appeal, appellant Fernando Javier Otero, M.D.,
challenges the denial of his motion to dismiss the health
care liability claim of appellees Rachel Saldivar and Roberto
Garza Jr., individually and as next friends of P.G.,
minor. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 51.014(a)(9); 74.351(a), (b) (West, Westlaw
through 2017 1st C.S.). By one issue, Dr. Otero argues that
the trial court should have dismissed the health care
liability claim because the plaintiffs' expert report did
not adequately address proximate causation. We affirm.
October 8, 2014, Rachel was admitted emergently at 11:45 p.m.
to Doctors Hospital at Renaissance in Edinburg, Texas. Rachel
was over thirty-seven weeks pregnant with P.G. and complained
of vaginal bleeding and lower right abdominal pain. Rachel,
however, was not evaluated in person by a physician until
almost nine hours after her admission. During that time,
P.G.'s vitals deteriorated and indicated that P.G. was
not receiving enough oxygen. P.G. was eventually delivered
via cesarean section at 9:22 a.m. on October 9, 2014, but
without a heartbeat, and she was successfully resuscitated.
Subsequent MRI scans showed P.G. sustained hypoxic ischemic
encephalopathy (HIE)-a severe, permanent brain injury caused
by a lack of oxygen and blood flow. P.G. spent forty-six days
after birth in neonatal intensive care and was diagnosed with
HIE, epilepsy, bronchiolitis, and uncontrolled seizures.
physicians oversaw Rachel's care from the time she was
admitted at the hospital until P.G. was delivered: (1) Carlos
Eduardo Puig, M.D., who was the obstetrician and gynecologist
responsible for Rachel from the beginning of her emergency
care on October 8, 2014 until early the next morning; and (2)
Dr. Otero, an obstetrician and gynecologist, who was called
to evaluate Rachel at 8:19 a.m. on October 9, 2014, evaluated
her at 8:31 a.m., and subsequently performed a cesarean
section on her at 9:22 a.m. Three hospital nurses also looked
after Rachel during this time.
and Roberto filed suit against Doctors Hospital at
Renaissance, Dr. Puig, and Dr. Otero for negligence resulting
in the injuries suffered by P.G.; however, only their claim
against Dr. Otero is relevant for the purpose of this appeal.
to the Texas health care liability statute, Rachel and
Roberto served Dr. Otero with an expert report authored by
Mark D. Akin, M.D. See id. § 74.351(a). Dr.
Otero filed objections to Dr. Akin's report and a motion
to dismiss, and Rachel and Roberto then obtained leave from
the trial court to file an amended expert report. According
to Dr. Akin's amended report, Dr. Otero should have
ordered a cesarean section immediately at 8:20 a.m. when he
was informed over the phone of Rachel's condition and
P.G.'s vitals. Instead, Dr. Otero examined Rachel at her
bedside at 8:31 a.m. and decided to perform an elective
surgery on another patient before performing Rachel's
cesarean section at 9:22 a.m. Dr. Akin explains Dr.
Otero's actions resulted in a delay of thirty-two minutes
in P.G.'s delivery, after accounting for the
thirty-minute window it takes from "decision to
incision." Dr. Otero again filed objections to Dr.
Akin's report, which were overruled, and a second motion
to dismiss, which was denied. This interlocutory appeal
Standard of Review
review a trial court's decision on the sufficiency of an
expert's report and on a motion to dismiss under the
expert-report rule for an abuse of discretion. Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010); see
also Tex. Civ. Prac. & Rem. Code Ann. § 74.351.
A court abuses its discretion if it acts in an arbitrary or
unreasonable manner and without reference to any guiding
rules or principles. Crawford v. XTO Energy, Inc.,
509 S.W.3d 906, 911 (Tex. 2017). "When reviewing matters
committed to the trial court's discretion, 'the
reviewing court may not substitute its judgment for that of
the trial court.'" Miller v. JSC Lake Highlands
Operations, LP, 536 S.W.3d 510, 512-13 (Tex. 2017)
(quoting Walker v. Packer, 827 S.W.2d 833, 839 (Tex.
74.351 of the Texas Civil Practice and Remedies Code provides
that a plaintiff in a health care liability suit must serve
the defendant with a statutorily-compliant expert report
accompanied by the expert's curriculum vitae.
See Tex. Civ. Prac. & Rem. Code Ann. §
74.351. If a plaintiff fails to do so within 120 days of
filing suit, the statute provides that the trial court must
dismiss the claim with prejudice on the defendant's
motion. See id. § 74.351(a), (b)(2). The report
must include the expert's opinion on each of the three
elements: standard of care, breach, and causation.
Jelinek, 328 S.W.3d at 539. The goal is "to
deter frivolous lawsuits by requiring a claimant early in
litigation to produce the opinion of a suitable expert that
his claim has merit." Columbia Valley Healthcare
Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017)
(quoting Scoresby v. Santillan, 346 S.W.3d 546, 552
(Tex. 2011)). Therefore, "[a]n expert report . . . is a
low threshold a person [bringing a claim] against a health
care provider must cross merely to show that his claim is not
frivolous." Loaisiga v. Cerda, 379 S.W.3d 248,
264 (Tex. 2012).
trial court must sustain a challenge to a report's
adequacy if the report does not represent an objective good
faith effort to provide a fair summary of the applicable
standard of care, the defendant's breach of that
standard, and how that breach caused the patient's
harm." Miller, 536 S.W.3d at 513 (internal
quotation marks omitted); see Tex. Civ. Prac. &
Rem. Code. Ann. § 74.351(l), (r)(6). "A
good-faith effort must 'provide enough information to
fulfill two purposes: (1) it must inform the defendant of the
specific conduct the plaintiff has called into question, and
(2) it must provide a basis for the trial court to conclude
that the claims have merit.'" Miller, 536
S.W.3d at 513 (quoting Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)). All
information needed for this inquiry is found within the four
corners of the expert report, which need not marshal all of
the plaintiff's proof. Jelinek, 328 S.W.3d at
539 (quoting Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 879, 879 (Tex. 2011)).
the causation element, the expert report must explain how and
why the healthcare provider's breach proximately caused
the plaintiff's injury. Zamarripa, 526 S.W.3d at
460. "Unquestionably, a plaintiff asserting a health
care liability claim based on negligence, who cannot prove
that her injury was proximately caused by the defendant's
failure to meet applicable standards of care, does not have a
meritorious claim." Id. There is no requirement
that the expert use any particular words, such as
"proximate cause, " "foreseeability, " or
"cause in fact"; however, the expert's
explanation of the plaintiff's injuries must be more than
a mere conclusory assertion. See id. Thus, "the
expert must explain the basis of his statements to link his
conclusions to the facts." Id. (quoting
Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999));
Jelinek, 328 S.W.3d at 539. In our inquiry, we are
precluded from filling gaps in a report by drawing inferences
or guessing as to what the expert likely meant or intended.
Fulp v. Miller, 286 S.W.3d 501, 509 (Tex.
App.-Corpus Christi 2009, no pet.).
Dr. Akin's Expert Report
sole issue, Dr. Otero makes several arguments in support of
his claim that Dr. Akin's expert report does not
adequately address proximate causation. Dr. Otero, however,
does not dispute the applicable standards of care or breaches
thereof as articulated by Dr. Akin. Thus, to aid our analysis
and provide ...