FIRST NOBILIS SURGICAL CENTER, LLC D/B/A FIRST STREET SURGICAL CENTER AND MICHAEL CIARAVINO, M.D., Appellants
PATRICIA PHILLIPS, Appellee
Appeal from the 164th District Court Harris County, Texas
Trial Court Cause No. 2017-63372
consists of Chief Justice Frost and Justices Wise and Hassan.
interlocutory appeal, Appellants, First Nobilis Surgical
Center, LLC d/b/a First Street Surgical Center ("First
Street") and Michael Ciaravino, M.D., challenge the
trial court's denial of their motions to dismiss the
healthcare liability claims of Appellee, Patricia Phillips,
on the grounds that the expert reports Phillips served
do not satisfy the expert report requirements under the Texas
Medical Liability Act. We affirm.
had breast implant surgery in 2005. On September 25, 2015,
Dr. Ciaravino, a plastic surgeon, replaced Phillips's
saline breast implants with silicone breast implants at First
Street. On October 1, 2015, Phillips developed tenderness and
redness on her right breast. She contacted Dr.
Ciaravino's office and was prescribed oral ciprofloxacin
and oral fluconazole. Dr. Ciaravino saw Phillips on October
2, 2015, and referred her to First Street for intravenous
October 5, 2015, Dr. Ciaravino removed Phillips's
implants, and a wound culture was taken from her breast
during the surgery. The next day, she was discharged with
oral antibiotics (ciprofloxacin). By October 8, 2015,
Phillips noted continued redness and drainage from her left
breast, so she went to Memorial Hermann Hospital. She was
hospitalized for treatment of cellulitis in both breasts.
time, wound cultures were obtained from her right and left
breasts by an infectious disease doctor at the hospital. The
cultures were positive for Klebsiella oxytoca. The
cultures obtained on October 5 were positive for Serratia
marcescens. These bacteria identified from her breast
wounds are normally found in the human colon.
October 14, 2015, Phillips required surgery to drain her left
breast hematoma and her right breast was treated with a
washout procedure. She was treated with Levofloxacin, a
broad-spectrum oral antibiotic. She was discharged from
Memorial Hermann Hospital on October 17, 2015.
sued Dr. Ciaravino and First Street on September 25, 2017.
She alleged Dr. Ciaravino was negligent in failing to follow
the appropriate standard of care with regard to the medical
care provided to her, which caused or contributed to cause
her injuries and damages. Phillips alleged:
1. Defendant, CIARAVINO, failed to promptly and timely
assess, recognize and/or acknowledge the signs, symptoms
and/or evidence of post-surgical infection in Plaintiff,
PATRICIA PHILLIPS' surgical wounds as heretofore
2. Defendant, CIARAVINO, failed to promptly and timely
implement an appropriate response to the obvious signs of
infection presented by Plaintiff, PATRICIA PHILLIPS;
3. Defendant, CIARAVINO, failed to promptly and timely swab
Plaintiff, PATRICIA PHILLIPS' wounds and submit swabs to
an appropriate pathology laboratory for culturing, analysis
4. Defendant, CIARAVINO, failed to prescribe appropriate
antibiotics to treat the infection in Plaintiff, PATRICIA
PHILLIPS' surgical wounds resulting in the infection
becoming resistant to antibiotics;
5. Defendant, CIARAVINO, failed to properly treat Plaintiff,
PATRICIA PHILLIPS' post-surgical infection;
6. Defendant, CIARAVINO, failed to timely consult and/or
refer Plaintiff, PATRICIA PHILLIPS, to an infectious disease
specialist for a higher level of medical care and treatment;
7. Defendant, CIARAVINO, failed to treat for serratia and/or
the actual infection, ESBL Klebsiella.
asserted a medical-negligence claim against First Street and
1. FIRST STREET Defendants failed to sterilize and decontaminate
the operating room surfaces to remove bacterial, viral,
fungal, and/or any nosocomial infection, including but not
limited to, ESBL Klebsiella and other multi-drug resistant
2. FIRST STREET Defendants failed to properly maintain for
physician use sterile equipment/instruments and/or avoid
cross-contamination to prevent ESBL Klebsiella and other
multi-drug resistant organisms.
3. FIRST STREET Defendants failed to sterilize and
decontaminate the surgical instruments/equipment used in the
surgical procedure and/or avoid cross-contamination, prevent
ESBL Klebsiella and other multi-drug resistant organisms.
4. FIRST STREET Defendants failed to maintain the
sterilization of the breast implant device and/or permit
cross-contamination by ESBL Klebsiella and other multi-drug
5. FIRST STREET Defendants failed to supervise the operating
room nursing staff's hygiene to avoid bacterial, viral,
fungal, and/or any nosocomial infection and/or
cross-contamination as a result of ESBL Klebsiella and other
multi-drug resistant organisms.
6. FIRST STREET Defendants failed to provide employees with
proper supervision and failed themselves to render medical
care in a manner that met the applicable standard of care.
7. FIRST STREET Defendants failed to meet the duty to provide
for the safety and care of Plaintiff, PATRICIA PHILLIPS.
Street filed its original answer on October 30, 2017, and Dr.
Ciaravino filed his original answer on November 2, 2017.
Phillips served expert reports from (1) Drs. Tyler Curiel and
Rathel Nolan on First Street on February 26, 2018, and (2)
Dr. Lincoln Miller on First Street and Dr. Ciaravino on March
1, 2018. Both First Street and Dr. Ciaravino filed objections
to the three expert reports and motions to dismiss in March
April 11, 2018, Phillips filed a motion for a 30-day
extension to provide supplemental reports to meet the
objections of First Street and Dr. Ciaravino; attached to
Phillips's motion was a revised report by Dr. Miller
dated April 6, 2018. First Street and Dr. Ciaravino filed
objections to Dr. Miller's revised report on April 30,
trial court held a hearing on June 4, 2018. First Street
argued the reports of Drs. Curiel and Nolan were deficient,
and Dr. Miller's reports were untimely served or,
alternatively, deficient. Phillips argued the reports of Drs.
Curiel and Nolan were not deficient and adequately addressed
only First Street. Phillips admitted that Dr. Miller's
report was "filed late as to First Street." She
acknowledged Dr. Miller's original report "could be
done better" but argued that Miller's revised report
of April 6, 2018 is "solid" and cures the original
report. Phillips argued she served the revised Miller report
to demonstrate the original report "is a curable
report" warranting the grant of a 30-day extension.
hearing on June 4, 2018, the trial court granted an extension
to "try and fix" the reports of Drs. Curiel and
Nolan but was concerned that Dr. Miller's report was late
with regard to First Street. The trial court would not allow
Phillips to cure the expert reports from Drs. Nolan and
Curiel with a report from Dr. Miller unless caselaw supported
Phillips's argument that a plaintiff is not limited to
the original experts to cure deficiencies but is allowed to
cure an expert report with her choice of a new expert. The
trial court also granted an extension without limitation
regarding Dr. Ciaravino, stating "so if there's
issues, you got 30 days."
7, 2018, Phillips filed a motion to allow additional expert
reports. She petitioned the trial court to allow her to,
among others, "use the amended expert report by Dr.
Lincoln Miller" to cure any defects with regard to First
Street; and she provided caselaw in support of her argument
that the Supreme Court of Texas "mandates that she be
allowed to provide reports from the experts of her
18, 2018, Phillips re-served Dr. Miller's revised report
of April 6, 2018 on First Street and Dr. Ciaravino. This
report is also referred to as Dr. Miller's third report.
25, 2018, the trial court signed three orders. In the first
order, the trial court (1) sustained Dr. Ciaravino's and
First Street's objections to the original reports of Drs.
Curiel, Nolan, and Miller as well as objections to Dr.
Miller's revised report; and (2) ordered that Phillips
"was granted one 30-day extension on June 4, 2018 . . .
to cure any deficiencies." In the second order, the
trial court granted Phillips's "Motion for a 30-day
extension of time to serve additional or supplemental expert
reports." The trial court ordered that Phillips, within
thirty days of June 25, 2018, (1) "serve any
supplemental or amended reports prepared solely by
either" Dr. Curiel or Dr. Nolan as to First Street; and
(2) "serve any supplemental or amended reports prepared
solely by" Dr. Miller as to Dr. Ciaravino. In the third
order, the trial court lifted the second order's
limitations and stated as follows:
On the undersigned date[, ] the Court considered the
Plaintiff's Motion to Allow Additional Expert Reports.
After review of the authority[, ] the Court finds that the
restriction limiting witness should be withdrawn.
IT IS ORDERED that Plaintiff, Patricia Phillips, has no
limitation as to the expert witness who [sic] she may choose
to use for the purpose of "curing" any defect in
the Expert Report applicable to any Defendant in this cause,
during the time permitted to effect a cure of prior reports.
29, 2018, Phillips served a revised expert report from Dr.
Nolan. There is no dispute that Dr. Nolan's revised
report, except for his qualifications, is essentially
identical to Dr. Miller's third report.
2018, Dr. Ciaravino and First Street filed motions to dismiss
as well as objections to Dr. Miller's third report and
Dr. Nolan's revised report.
trial court held a hearing on the motions to dismiss on
August 24, 2018. First Street argued that, because the trial
court already had sustained its objections to Dr.
Miller's revised report and signed an order finding the
report deficient, the court should find Dr. Miller's
third report and Dr. Nolan's revised report equally
deficient as they are identical to Dr. Miller's revised
report. Phillips countered that the trial court found Dr.
Miller's report insufficient only because it was untimely
filed as to First Street and the court did not consider the
substance of the report. Dr. Ciaravino also argued that Dr.
Miller's third report is inadequate and reminded the
trial court that it had signed an order sustaining objections
to the original reports of Drs. Miller, Nolan, and Curiel as
well as Dr. Miller's revised report. In response to the
parties' arguments, the trial court stated:
Okay. So let me say this. As I recall our prior meeting, we
spent the large sum of it dealing with the lateness of these
reports and whether or not we could switch out the expert,
more so than dealing with the substantive issues with the
reports. To be perfectly honest, Dr. Miller's report, I
don't really have a problem with. To the extent that it
sounds like Dr. Nolan signed off on Dr. Miller's report
might be a problem later on down the road, but as far as
pursuing the case, I'm not having a problem with that. So
here's what I'm going to do: I'm going to
overrule the objections to the reports for Ciaravino and
First Street at this time.
the hearing, the trial court signed an order denying the
motions to dismiss. Dr. Ciaravino and First Street filed a
timely interlocutory appeal.
of Review and Applicable Law
review a trial court's ruling on a healthcare
provider's motion to dismiss a healthcare liability claim
for an abuse of discretion. Harvey v. Kindred Healthcare
Operating, Inc., 578 S.W.3d 638, 644 (Tex. App.-Houston
[14th Dist.] 2019, no pet. h.); Houston Methodist Hosp.
v. Nguyen, 470 S.W.3d 127, 129 (Tex. App.- Houston [14th
Dist.] 2015, pet. denied). In the absence of findings of fact
or conclusions of law, we uphold a trial court's ruling
on a motion to dismiss on any theory supported by the record
and infer any necessary findings of fact to support the
ruling. Harvey, 578 S.W.3d at 644; Nguyen,
470 S.W.3d at 129. 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) (per
curiam); Harvey, 578 S.W.3d at 644.
Texas Medical Liability Act governs healthcare liability
claims. Nguyen, 470 S.W.3d at 129; see also
Tex. Civ. Prac. & Rem. Code Ann. §§
74.001-.507. The Act entitles a defendant to dismissal of a
healthcare liability claim if the defendant is not timely
served with an expert report showing the claim has merit.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b);
Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex.
2011). The Act specifies requirements for an adequate report
and mandates "an objective good faith effort to
comply" with these requirements. Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(1), (r)(6); Scoresby,
346 S.W.3d at 549. In determining whether a good faith effort
has been made, the trial court is limited to the four corners
of the report and cannot consider extrinsic evidence.
Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010);
Harvey, 578 S.W.3d at 644.
expert must establish that he is qualified to provide an
acceptable report. Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(r)(5); Harvey, 578 S.W.3d at 644. The
expert's qualifications must appear in the expert report
and cannot be inferred. Harvey, 578 S.W.3d at 644;
Baylor Coll. of Med. v. Pokluda, 283 S.W.3d 110, 117
(Tex. App.-Houston [14th Dist.] 2009, no pet.). Thus,
analysis of expert qualifications under section 74.351 is
limited to the four corners of the expert's report and
the expert's curriculum vitae. Pokluda, 283
S.W.3d at 117; see also Harvey, 578 S.W.3d at 644.
an expert report must provide a fair summary of the
expert's opinions regarding (1) the applicable standard
of care; (2) the manner in which the care provided failed to
meet that standard; and (3) the causal relationship between
that failure and the injury, harm, or damages claimed.
See Tex. Civ. Prac. & Rem. Code Ann. §
74.351(r)(6); see also Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 878 (Tex.
2001). To comply with these standards, the expert report must
incorporate sufficient information to inform the defendant of
the specific conduct the plaintiff has called into question
and provide a basis for the trial court to conclude the
claims have merit. Palacios, 46 S.W.3d at 879;
see also Baty v. Futrell, 543 S.W.3d 689, 693-94
(Tex. 2018). A report may not merely contain the expert's
conclusions about these elements. Jelinek, 328
S.W.3d at 539; Palacios, 46 S.W.3d at 879. The
expert must explain the basis for his statements and link his
conclusions to the facts of the case. Jelinek, 328
S.W.3d at 539; Harvey, 578 S.W.3d at 645. A
plaintiff need not present all the evidence necessary to
litigate the merits of the plaintiff's case.
Palacios, 46 S.W.3d at 879; Harvey, 578
S.W.3d at 645. The report may be informal and the information
therein need not fulfill the same requirements as the
evidence offered in a summary judgment proceeding or at
trial. Palacios, 46 S.W.3d at 879; Harvey,
578 S.W.3d at 645.
Ciaravino and First Street submitted separate briefing on
appeal; Dr. Ciaravino presents five issues and First Street
presents three issues. We begin by addressing Dr.
Dr. Ciaravino's Issues
Ciaravino argues in his first issue that the trial court
abused its discretion by overruling his objections to Dr.
Nolan's and Dr. Miller's qualifications because these
experts, who are infectious disease specialists, "fail
to articulate credentials to opine on the standard of care
relevant to Dr. Ciaravino, a plastic surgeon." Dr.
Ciaravino contends that Drs. Nolan and Miller did not
demonstrate qualifications based on training or experience in
the "standards of care for the diagnosis, care, or
treatment as applied to a plastic surgeon in the peri- or
post-operative phase of a patient's care."
Dr. Miller's Qualifications
Ciaravino contends that "Dr. Miller is not qualified to
opine on the peri-operative and post-operative standards
relevant to Dr. Ciaravino, a plastic surgeon" because:
"Dr. Miller offers no insight as to where his promoted
standards originated"; he did not state that "his
promoted peri- or post-operative standards are substantially
developed in the surgical arena or, more specifically, the
plastic surgery arena"; he never articulated any
credentials or "practical knowledge of what is usual or
customary for plastic surgeons in the same peri- or
post-operative situation that confronted Dr. Ciaravino";
and he did not "indicate the standards advanced are
generally accepted in the medical field, much less plastic
focus our initial analysis on whether Dr. Miller was
qualified to opine on the post-operative standards of care.
An expert report satisfying the requirements of the Texas
Medical Liability Act as to a defendant "is sufficient
for the entire suit to proceed against the defendant",
even if "it addresses only one theory of liability
alleged against that defendant." TTHR Ltd.
P'ship v. Moreno, 401 S.W.3d 41, 42 (Tex. 2013);
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630-32
(Tex. 2013). Thus, if Dr. Miller's report satisfies all
the Act's requirements as to Phillips's claim against
Dr. Ciaravino for negligence during post-operative care, we
need not address arguments relating to a liability theory
against Dr. Ciaravino for negligent pre-operative care.
See Methodist Hosp. v. Addison, 574 S.W.3d 490, 502
(Tex. App.- Houston [14th Dist.] 2018, no pet.); see also
Potts, 392 S.W.3d at 630-32. With that in mind, we turn
to the expert qualification requirements set out in the Act.
person is qualified as an expert witness to render an opinion
against a physician on the issue of whether the physician
departed from accepted standards of medical care if the
person is a physician who (1) is practicing medicine at the
time such testimony is given or was practicing medicine at
the time the claim arose; (2) has knowledge of accepted
standards of medical care for the diagnosis, care, or
treatment of the illness, injury, or condition involved in
the claim; and (3) is qualified on the basis of training or
experience to offer an expert opinion regarding those
accepted standards of medical care. Tex. Civ. Prac. &
Rem. Code Ann. § 74.401(a). "Practicing
medicine" or "medical practice" includes, but
is not limited to, training residents or students at an
accredited school of medicine or serving as a consulting
physician to other physicians who provide direct patient
care. Id. § 74.401(b). In assessing whether the
witness has the required knowledge, skill, experience, or
training, the court must consider whether the witness is: (1)
board certified or has other substantial training or
experience "in an area of medical practice relevant to
the claim"; and (2) actively practicing medicine
"in rendering medical care services relevant to the
claim." Id. § 74.401(c).
expert report,  Dr. Miller outlines his qualifications as
I am a licensed Infectious Disease Physician in the State of
New Jersey. I am board certified in the specialty of Internal
Medicine and the subspecialty of Infectious Diseases. I
received a B.A. from Brown University and an M.D. from the
Sackler School of Medicine/University of Tel-Aviv. I did my
internship and residency in Internal Medicine at the SUNY
Buffalo Affiliated Hospitals Program and my Infectious
Disease subspecialty training at Emory University. I have
more than twenty-five years of experience in the field of
Infectious Diseases. I am the Co-Chief, Section of Infectious
Disease, at Saint Barnabas Medical Center, Livingston, New
Jersey, where I serve as the Co-Chief of the Infection
Control Committee and the Co-Chief of the Antimicrobial
Stewardship Committee. I have extensive experience in the
treatment of patients with breast infections, like Ms.
Phillips, particularly those related to breast implants. I
have significant experience in the prevention and treatment
of nosocomial infections- infections acquired by patients
directly from health care facilities- including infections
acquired in the operating room setting. Additionally, I am a
Clinical Associate Professor of Medicine at Rutgers - New
Jersey Medical School. I frequently lecture medical residents
and medical students about Infectious Diseases and I teach
medical residents how to diagnose and treat patients with a
variety of infectious diseases, including breast infections
in patients like Ms. Phillips. I have attached a copy of my
up-to-date curriculum vitae. Therefore, I am qualified, based
on my education, training, and experience, to opine in this
Ciaravino's overarching complaint is that Dr. Miller is
not qualified to opine on the relevant post-operative
standards because Dr. Miller is not a plastic surgeon. Dr.
Ciaravino argues Dr. Miller allegedly did not state
"where his promoted standards originated," did not
articulate that his stated post-operative standards are
substantially developed in the "plastic surgery
arena," did not articulate any credentials or
"practical knowledge of what is usual or customary for
plastic surgeons" in the "post-operative situation
that confronted Dr. Ciaravino," and did not
"indicate the standards advanced are generally accepted
in the medical field, much less plastic surgery." Dr.
Ciaravino seemingly takes the position that Dr. Miller is not
qualified to render opinions in this case because Dr.
Miller's specialty is in a different medical discipline
from his own.
not every licensed physician is qualified to testify about
every medical question, see Broders v. Heise, 924
S.W.2d 148, 152 (Tex. 1996), "expert qualifications
should not be too narrowly drawn." Larson, 197
S.W.3d at 305. To qualify as an expert in a particular case,
a medical expert need not practice in the exact same field as
the defendant physician. Pokluda, 283 S.W.3d at 118;
see also Broders, 924 S.W.2d at 153-54; Kelly v.
Rendon, 255 S.W.3d 665, 674 (Tex. App.- Houston [14th
Dist.] 2008, no pet.); and McKowen v. Ragston, 263
S.W.3d 157, 162 (Tex. App.-Houston [1st Dist.] 2007, no
pet.). The test is whether the report and curriculum vitae
establish the expert's knowledge, skill, experience,
training, or education regarding the specific issue before
the court that would qualify the expert to give an opinion on
that particular subject. Roberts v. Williamson, 111
S.W.3d 113, 121 (Tex. 2003); Pokluda, 283 S.W.3d at
118-19. In determing whether a witness is qualified on the
basis of training or experience to render expert opinions,
the court shall consider whether the proffered witness (1) is
board certified or has other substantial training or
experience "in an area of medical practice
relevant to the claim," and (2) is actively
practicing medicine "in rendering medical care services
relevant to the claim." Tex. Civ. Prac. &
Rem. Code Ann. § 74.401(c) (emphasis added).
the relevant medical services are those for a post-surgical
patient showing signs and symptoms of infection in her
breasts. Phillips specifically pleaded Dr. Ciaravino failed
to (1) timely assess and recognize signs and symptoms of
post-surgical infection; (2) timely implement an appropriate
response to obvious signs of infection; (3) timely swab
Phillips's wounds and submit swabs for culturing and