Appeal from the 55th District Court Harris County, Texas
Trial Court Case No. 2016-36453
consists of Justices Lloyd, Goodman, and Landau.
Beth Landau Justice
interlocutory appeal, Nancy Carmen Curnel and Ronald Curnel
appeal from a judgment dismissing their health care liability
claim for failure to serve adequate expert reports. Tex. Civ.
Prac. & Rem. Code §§ 51.014(a)(9), 74.351(a),
(b). In a single issue, the Curnels contend that the trial
court abused its discretion by granting the motion to dismiss
for failure to serve adequate expert reports. We reverse and
case has been before us twice previously. According to the
expert reports, Nancy Curnel visited a local walk-in clinic
on October 4, 2015. She was diagnosed with a urinary tract
infection and prescribed the antibiotic nitrofurantoin.
Nitrofurantoin is known for potential hepatotoxic effects and
can cause drug-induced liver injury ("DILI").
days later, Curnel presented to the emergency department at
Houston Methodist Willowbrook Hospital
("Willowbrook") with elevated liver enzymes. Dr. M.
Esantsi, an on-duty hospitalist, examined Curnel and
misdiagnosed her with viral hepatitis. Without evaluating her
current medications for hepatotoxicity, Dr. Esantsi told
Curnel to continue taking the antibiotic that caused her
elevated liver enzymes. He then admitted her to the hospital
for further evaluation. Once admitted, Dr. Esantsi ordered
nurses to administer acetaminophen to Curnel, which is a
well-known hepatoxic medication.
thereafter, two nurses administered nitrofurantoin to Curnel
at separate times. On the third day of her hospitalization,
Dr. S. Ugbarugba, a gastroenterologist, examined Curnel,
noted that she might be suffering from DILI, and ordered a
biopsy of her liver for additional testing. Dr. Ugbarugba did
not record the medications that Curnel had been taking at
that time, including nitrofurantoin. Dr. Y. Naygandhi,
another hospitalist, examined Curnel that same day,
documented the "medication-related hepatitis," and
ordered a review of Curnel's medications to determine the
cause of her elevated liver enzymes.
Naygandhi further ordered Curnel to discontinue
nitrofurantoin, and Curnel's liver enzymes
improved. Her bilirubin began to decrease, her AST
continued to decrease, and her ALT and ALP underwent
"non-significant changes." Dr. Ugbarugba examined
Curnel examined a third time. His progress note contained the
"exact" same "assessment from the day
prior" except that it noted, "Liver bx
today." "A pre-procedure prothrombin time/INR
ordered by Dr. Esantsi return[ed] as normal (this was the
first time checked since presentation)."
Curnel's liver enzymes showing signs of improvement after
discontinuing nitrofurantoin, neither the physicians nor the
nurses canceled or postponed the biopsy. A radiologist
performed the biopsy. He obtained two "cores,"
which showed that "the liver function abnormalities were
due to medication effects." During the biopsy, the
radiologist nicked Curnel's artery, causing severe
injuries, including shock, anemia, and intra-abdominal
hemorrhage. Curnel required multiple blood transfusions,
medications to maintain circulation, mechanical ventilation,
prolonged resuscitation, and extended ICU care.
and her husband, Ronald (the "Curnels"), asserted
health care liability claims against Willowbrook, Dr.
Ugbarugba, and various other physicians who treated her
throughout her hospitalization. The Curnels obtained and
served a series of expert reports from a gastroenterologist,
Dr. T. Sheer, and a registered nurse, J. Fomenko. Dr.
Sheer's report addressed whether the failure to evaluate
the toxicity of Curnel's medications and whether the
failure to implement a "chain of command" system
caused Curnel's injuries. Fomenko's report addressed
the standard of care and its breach. Willowbrook and Dr.
Esantsi filed motions to dismiss under Texas Civil Practice
and Remedies Code Section 74.351. The trial court found that
the combined expert reports were inadequate as to all three
elements of the Curnels' claims (i.e., standard of care,
breach, and causation), denied the Curnels' request for
an extension to cure the deficiencies, and dismissed the
Curnels' claims against Willowbrook and Dr. Esantsi. The
Curnels appealed the trial court's interlocutory order
dismissing their claims with prejudice against Willowbrook,
contending the trial court abused its discretion in granting
the motion to dismiss for failure to serve adequate expert
reports. See Curnel v. Houston Methodist
Hosp.-Willowbrook, 562 S.W.3d 553, 561 (Tex.
App.- Houston [1st Dist.] 2018, no pet.) (op. on reh'g)
Curnel I, this Court held Fomenko's reports on
Willowbrook provided adequate opinions on the standard of
care and breach but that Dr. Sheer's reports on
Willowbrook did not adequately address cause-in-fact and
foreseeability, as required to establish causation.
Id. at 570. This Court also held that the expert
reports were potentially curable and therefore the trial
court erred in failing to allow an extension to cure
deficiencies. Id. The case was remanded for further
the Curnel I interlocutory appeal was pending, the
Curnels filed an amended petition, which asserted health care
liability claims against TMH Health Care Group, the Methodist
Hospital System ("Methodist"), which manages and
oversees Willowbrook, as well as three Willowbrook nurses, M.
Bansuan, O. Emenanjo, and L. Jiang (the "Nurse
Defendants"). The Curnels' claim against Methodist
was based on the same allegations as their direct liability
claim against Willowbrook, and their claims against the Nurse
Defendants were based on the same allegations as their
vicarious liability claim against Willowbrook. The Curnels
served additional expert reports. Willowbrook and the Nurse
Defendants objected to the expert reports as deficient and
moved to dismiss the Curnels' claims. The Curnels filed a
response and requested an extension to cure the expert
reports. Finding the expert reports deficient, the trial
court denied the Curnels' motion for an extension to cure
and dismissed their claims against Methodist and the Nurse
Defendants. The Curnels filed a second interlocutory appeal,
contending that the trial court abused its discretion by
granting the motions to dismiss and denying their motion for
an extension to cure. See Curnel v. Methodist Hosp.,
No. 01-17-00742-CV, 2018 WL 4014590, at *2 (Tex. App.-Houston
[1st Dist.] Aug. 23, 2018, no pet.) (mem. op.)
Curnel II, the Court held that Dr. Sheer's
reports on Methodist and the Nurse Defendants failed to
adequately address cause-in-fact and foreseeability, as
required to establish causation. Id. at *8-*9. The
Court also held that the trial court abused its discretion by
denying the Curnels' motion for an extension to cure
because the expert reports were deficient but curable and
reversed and remanded the case. Id. at *10.
remand, the Curnels served three additional expert reports
from Dr. Sheer, Fomenko, and Dr. D. Kett, addressing the
deficiencies identified in Curnel I and Curnel
Methodist, and the Nurse Defendants objected to the expert
reports as deficient and moved to dismiss the Curnels'
claims. The trial court granted the motion to dismiss. This
interlocutory appeal followed.
their sole issue, the Curnels contend that the trial court
abused its discretion by dismissing their claims against
Willowbrook, Methodist, and the Nurse Defendants.
Applicable law and standard of review
the Medical Liability Act, a plaintiff asserting health care
liability claims must timely serve each defendant physician
and health care provider with one or more expert reports and
a curriculum vitae of each expert whose opinion is offered to
substantiate the merits of the claims. Tex. Civ. Prac. &
Rem. Code § 74.351(a), (i); see Mangin v.
Wendt, 480 S.W.3d 701, 705 (Tex. App.-Houston [1st
Dist.] 2015, no pet.). The expert report must provide a
"fair summary" of the expert's opinions
regarding the (1) applicable standards of care, (2) manner in
which the care rendered by the physician or health care
provider failed to meet the standards, and (3) causal
relationship between that failure and the injury, harm, or
damages claimed. Tex. Civ. Prac. & Rem. Code §
74.351(r)(6). A "fair summary of the expert's
opinions" means that, at the least, the report must
state more than mere conclusions and must instead explain the
basis of the expert's opinion so as to link the
conclusions to the facts of the case. See Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Bowie
Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)
standard of care and breach, the expert report must explain
what the physician or health care provider should have done
under the circumstances and what the physician or health care
provider did instead. Am. Transitional Care Ctrs. of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001).
For causation, the expert report must explain how and why the
physician's or health care provider's breach
proximately caused the plaintiff's injury. Columbia
Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d
453, 459-60 (Tex. 2017).
consists of two components: (1) cause-in-fact and (2)
foreseeability. Gunn v. McCoy, 554 S.W.3d 645, 658
(Tex. 2018). A physician's or health care provider's
breach was a cause-in-fact of the plaintiff's injury if
the breach was a substantial factor in bringing about the
harm, and absent the breach the harm would not have occurred.
Id. Even if the harm would not have occurred absent
the defendant's breach, "the connection between the
defendant and the plaintiff's injuries simply may be too
attenuated" for the breach to qualify as a substantial
factor. Allways Auto Grp., Ltd. v. Walters, 530
S.W.3d 147, 149 (Tex. 2017) (per curiam) (quoting Union
Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.
1995)). A breach is not a substantial factor if it "does
no more than furnish the condition that makes the
plaintiff's injury possible." Id. A
physician's or health care provider's breach is a
foreseeable cause of the plaintiff's injury if a
physician or health care provider of ordinary intelligence
would have anticipated the danger caused by the negligent act
or omission. Puppala v. Perry, 564 S.W.3d 190, 197
(Tex. App.-Houston [1st Dist.] 2018, no pet.).
expert report is not required to prove the defendant's
liability but only to provide notice of the conduct forming
the basis of the plaintiff's claim. Gracy Woods I
Nursing Home v. Mahan, 520 S.W.3d 171, 189 (Tex.
App.-Austin 2017, no pet.). The report "need not
anticipate or rebut all possible defensive theories that may
ultimately be presented" in the case. Owens v.
Handyside, 478 S.W.3d 172, 187 (Tex. App.-Houston [1st
Dist.] 2015, pet. denied). "Nothing in Section 74.351
suggests the preliminary report is required to rule out every
possible cause of the injury, harm or damages claimed,
especially given that Section 74.351(s) limits discovery
before the report is filed." Meyer v. Strahan,
578 S.W.3d ...