Appeal from the 161st District Court Ector County, Texas
Trial Court Cause No. B-16-12-1170-CV
consists of: Bailey, C.J., Willson, J., and Wright, S.C.J.
M. BAILEY, CHIEF JUSTICE.
Professional Care and Kristopher Kindle, CRNA, bring this
interlocutory appeal from the trial court's denial of a
motion to dismiss the health care liability claims brought by
Appellees: Yulissa Zubia, individually and as representative
of the Estate of Elpidia Rios De Zubia; Rene Zubia; and Rene
Zubia, Jr. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(l) (West 2017). Because the expert
report filed by Appellees in support of their claims fails to
state the specific conduct that breached the applicable
standard of care and is conclusory regarding causation, we
reverse the trial court's order denying Appellants'
motion to dismiss, and we remand this cause for further
alleged that Elpidia Rios de Zubia (Zubia) died while under
general anesthesia for the "routine placement of a
port-a-cath." Appellees brought health care liability
claims against several health care providers and physicians
connected with Zubia's procedure, including Kindle, a
certified registered nurse anesthetist, and his employer,
MCH Professional Care (MCH). In their original petition,
Appellees alleged that Kindle was responsible for
"anesthetizing" Zubia during the procedure and that
his failure to properly use and supervise the anesthesia
equipment and to properly monitor Zubia caused Zubia's
death. Appellees also asserted that MCH was vicariously
liable for Kindle's alleged negligence.
attached the expert report of Dr. Michael Hurt, an
anesthesiologist, to their original petition. See
Civ. Prac. & Rem. § 74.351(a). Appellants objected
to the report as insufficient and filed a motion to dismiss
Appellees' claims against them. See id. §
74.351(a)-(c), (l). Appellants specifically argued
that the report failed to specify how any conduct by
Appellants deviated from the identified standards of care and
did not adequately explain the causal relationship between
Appellants' alleged negligence and Zubia's death. The
trial court overruled Appellants' objections to Dr.
Hurt's report and denied the motion to dismiss.
single issue on appeal, Appellants contend that the trial
court abused its discretion when it overruled the objections
to the sufficiency of Dr. Hurt's report and denied the
motion to dismiss. See id. §
Texas Medical Liability Act (the TMLA) requires health care
liability claimants to serve an expert report upon each
defendant within 120 days after the defendant files an
answer. Id. § 74.351(a); Scott v.
Weems, No. 17-0563, 2019 WL 1867916, at *2 (Tex. Apr.
26, 2019). The purpose of the expert report requirement is
"to weed out frivolous malpractice claims in the early
stages of litigation, not to dispose of potentially
meritorious claims." Abshire v. Christus Health Se.
Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam).
expert report must provide a fair summary of the expert's
opinions regarding the applicable standard of care, the
manner in which the care rendered failed to meet that
standard, and the causal relationship between the failure to
meet the standard of care and the injury suffered. Civ. Prac.
& Rem. § 74.351(r)(6); Abshire, 563 S.W.3d
at 223; Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (citing former
version TMLA). A trial court may grant a motion to dismiss
under the TMLA only if it appears that the expert report is
not an objective good faith effort to comply with the
statutory requirements. Civ. Prac. & Rem. §
74.351(l). An expert report demonstrates a
"good faith effort" when it informs 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. Baty v. Futrell, 543
S.W.3d 689, 693-94 (Tex. 2018).
order for a report to be sufficient under the TMLA, the
expert is required to explain the basis of his statements and
link his conclusions to the facts. Bowie Mem'l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam)
(citing former version TMLA); see also Columbia Valley
Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460
(Tex. 2017). An expert report "need not marshal all the
plaintiff's proof," but '[a] report that merely
states the expert's conclusions about the standard of
care, breach, and causation' is insufficient.
Palacios, 46 S.W.3d at 878-79; accord
Abshire, 563 S.W.3d at 223. In determining whether an
expert report contains the required information, a court must
review the entire report, not just specific portions or
sections. Baty, 543 S.W.3d at 694.
review a trial court's decision to deny a motion to
dismiss based on the sufficiency of an expert report for an
abuse of discretion. Abshire, 563 S.W.3d at 223. In
analyzing a report under this standard, we consider only the
information contained within the four corners of the report.
Id. We defer to the trial court's factual
determinations if supported by the evidence but review its
legal determinations de novo. Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per
curiam). A trial court abuses its discretion if it acts
without reference to guiding rules or principles.
first assert that the expert report was insufficient because
Dr. Hurt failed to identify specific conduct by Appellants
that breached the applicable standard of care. An expert
report must inform the defendant of the specific conduct
called into question. Palacios, 46 S.W.3d at 880.
Although the plaintiff is required to provide only a
"fair summary" of the expert's opinion, that
summary "must set out what care was expected, but not
given." Id. (quoting Palacios v. Am.
Transitional Care Ctrs. of Tex., Inc., 4 S.W.3d 857, 865
(Tex. App.-Houston [1st Dist.] 1999) (Taft, J., dissenting),
rev'd, 46 S.W.3d 873 (Tex. 2001)). An