Woofter, M.D. v. Benitez (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Sharp)
(
HCLC, denial of defendant's motion to dismiss affirmed, sufficiency of expert report in med-mal
case)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Sharp  
Before Justices Jennings, Higley and Sharp   
01-09-00161-CV   Aaron Lee Woofter, M.D. Danny Chu, M.D., Johnathan Charles Daniel, M.D.
and Fred Milton Sutton, Jr. M.D. v. Molly Benitez, Individually and as Representative of the Estate
and Kazi M. Islam   
Appeal from
Probate Court No 1 of Harris County
Trial Court Judge: The Honorable Kathleen S Stone

MEMORANDUM OPINION

In their sole issue on this interlocutory appeal, Doctors Aaron Lee Woofter, M.D., Danny Chu, M.
D., Jonathan Charles Daniel, M.D., and Fred Milton Sutton, Jr. M.D. (collectively, “the doctors” or
“appellants”) contend that the court abused its discretion when it declined to dismiss the medical
malpractice suit pending against them.

We affirm.

Background

During the course of her chemotherapy for tonsil cancer, Andrea Islam had difficulty eating and
was becoming malnourished.  In an attempt to alleviate these conditions, Dr. Woofter and Dr.
Sutton inserted a percutaneous endoscopic gastrostomy (PEG) tube into Islam’s stomach but
tore her esophagus.  A barium swallow study was administered that revealed a leak and Dr. Chu
and Dr. Daniel performed surgery to repair the tear.  Islam later died of respiratory failure.
Brought by her surviving heirs (collectively, “the family”), this medical negligence case claims
Islam died of aspiration pneumonia resulting from the barium leaking from her esophagus into
adjacent tissue.

The family timely served the doctors with the required report and curriculum vitae of their expert,
Mark S. Sanders, M.D.  The doctors objected to the sufficiency of the expert report and filed a
motion to dismiss.[1]  After the family filed a response and a request for a 30-day extension to
cure any deficiency and a hearing was held on the matter, the doctors’ motion to dismiss was
denied.  That ruling was previously appealed to this Court, and, finding that report to be
deficient, we held that the trial court’s denial of the doctors’ challenge to the Sanders expert
report was error.  Specifically, we found that the report failed to provide a sufficient basis for the
trial court to find that Dr. Sanders, an orthopedic surgeon, was qualified to opine on the
appropriate standards of care for gastroenterologists, Dr. Chu and Dr. Daniel, or cardiothoracic
surgeons, Dr. Woofter and Dr. Sutton.  Woofter v. Benitez, No. 01-06-01123-CV, 2008 WL
2466223 (Tex. App.—Houston [1st Dist.] June 19, 2008, no pet.) (mem. op.).

Following a 30-day extension, the family submitted expert reports and curricula vitae for two new
experts: Todd Eisner, M.D. and M. Wayne Flye, M.D.  The doctors objected to the sufficiency of
these expert reports as well and filed another motion to dismiss.  After the family filed a response
and a request for a 30-day extension to cure any deficiency, the trial court denied doctors’
motion to dismiss and this interlocutory appeal ensued.

Discussion

Appellants assert that the trial court abused its discretion when it found the expert reports of Drs.
Eisner and Flye to be sufficient.[2]

I. Applicable Law

A. Standard of Review

We review all rulings on section 74.351 under an abuse of discretion standard.  Am. Transitional
Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).  A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner or without reference to any guiding rules or
principles.  See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  When reviewing matters
committed to the trial court’s discretion, we may not substitute our own judgment for that of the
trial court.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).  A trial court does not abuse its
discretion merely because it decides a discretionary matter differently than an appellate court
would in a similar circumstance.  See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
242 (Tex. 1985).

Although we defer to the trial court’s factual determinations, we review questions of law de novo.  
Rittmer v. Garza, 65 S.W.3d 718, 722 (Tex. App.—Houston [14th Dist.] 2001, no pet.).  To the
extent resolution of the issue before the trial court requires interpretation of the statute itself, we
apply a de novo standard. Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.]
2004, no pet.).
B. Chapter 74 Expert Report Requirements

Section 74.351 imposes a threshold to prevent frivolous or premature lawsuits from proceeding
until a good-faith effort has been made to demonstrate that at least one expert believes that a
breach of the applicable standard of care caused the claimed injury.  Wilson-Everett v. Christus
St. Joseph, 242 S.W.3d 799, 803 (Tex. App.—Houston [14th Dist.] 2007, pet denied) (citing
Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005); Walker v. Gutierrez, 111 S.W.3d 56, 66
(Tex. 2003)).

In reviewing whether an expert report complies with Chapter 74, we evaluate whether the report
“represents a good-faith effort” to comply with the statute.  Strom v. Mem’l Hermann Hosp. Sys.,
110 S.W.3d 216, 221 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).  Although the report
does not need to marshal all of the plaintiff’s proof, it must include the expert’s opinions on the
three statutory elements—standard of care, breach, and causation.  See Palacios, 46 S.W.3d at
878, 880; Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex. App.—Tyler 2008, pet. denied) (quoting
Palacios, 46 S.W.3d at 880) (stating “fair summary” is “something less than a full statement” of
the applicable standard of care, how it was breached, and how that breach caused the injury).  In
detailing these elements, the report must provide enough information to fulfill two purposes if it is
to constitute a good faith effort.  First, it must inform the defendant of the specific conduct that
the plaintiff has called into question.  Palacios, 46 S.W.3d at 879.  Second, it must provide a
basis for the trial court to conclude that the claims have merit.  Id.  A report that merely states the
expert’s conclusions as to the standard of care, breach, and causation does not fulfill these two
purposes.  Id.  The expert must explain the basis for his statements and link his conclusions to
the facts.  Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (citing Earle v. Ratliff, 998
S.W.2d 882, 890 (Tex. 1999)).  Furthermore, in assessing the report’s sufficiency, the trial court
may not draw any inferences, and instead must rely exclusively on the information contained
within the report’s four corners.  See Palacios, 46 S.W.3d at 878.  A report’s adequacy does not
depend on whether the expert uses any particular “magic words.”  Spitzer, 247 S.W.3d at 750
(quoting Wright, 79 S.W.3d at 53).

Medical malpractice plaintiffs must provide each defendant physician and health care provider
with an expert report within 120 days of filing suit or voluntarily nonsuit the action.  Tex. Civ. Prac.
& Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008).  A defendant may then file an objection to
the sufficiency of the report within 21 days after the date the report was served.  See id.  A
defendant may also file a motion seeking dismissal of the claims and attorneys’ fees and costs.  
See id. § 74.351(b) (providing that if sufficient expert report not timely served in accordance with
subsection (a), court shall, on motion of affected defendant, enter order dismissing claim with
prejudice with respect to movant and awarding movant reasonable attorney’s fees and costs).  
The trial court shall grant the motion only if it appears, after hearing, that the report does not
represent a good faith effort to comply with the statutory definition of an expert report.  See id. §
74.351(1).

An “expert report” under Chapter 74 is

(1)     a written report

(2)     by an expert

(3)     that provides, as to each defendant, a “fair summary” of the expert’s opinions as of the
date of the report regarding

(a)     applicable standards of care

(b)             the manner in which the care provided failed to meet the standards; and

(c)      the causal relationship between that failure and the injury, harm, or damages claimed.
See id. § 74.351(r)(6); Palacios, 46 S.W.3d at 877.  For a document to be considered an “expert
report” for the purposes of subsection 74.351(r)(6), it must be rendered by someone qualified to
testify as an expert on the relevant medical subject area.  Hansen v. Starr, 123 S.W.3d 13, 19
(Tex. App.—Dallas 2003, pet. denied).
II.      Adequacy of Expert Reports

Appellants assert that neither the Eisner report nor the Flye report satisfy the requirements of
section 74.351.
A.   Appellants’ Arguments as to Dr. Flye

Appellants assert that Dr. Flye’s report is generally inadequate as to all four defendant
physicians because (1) it does not address the actions of each physician individually; (2) a copy
of the autopsy report relied upon by Dr. Flye to establish causation is not attached; (3) the report
does not set forth the qualifications of the pathologist who performed the autopsy upon which Dr.
Flye relied for his causation opinions; and (4) no causation is shown because it does not
demonstrate that Islam’s life expectancy accorded her more than a 50% chance to survive.

As to Drs. Daniel and Chu, specifically, appellants argue that Dr. Flye’s report is inadequate
because (1) it makes no allegations of a violation of a standard of care against either of them
individually; and (2) to the extent that it does address the standard of care and causation
elements, these sections of the report are conclusory as to Drs. Daniel and Chu.

Appellants also argue that the Dr. Flye report is inadequate as to Drs. Sutton and Woofter
because (1) Dr. Flye is not qualified to offer opinions regarding the standard of care for either
Drs. Sutton or Woofter; (2) the report makes no allegations of a violation of a standard of care
against either Drs. Woofter or Sutton individually or for the procedure in which they were
involved; (3) the report criticizes Dr. Woofter for a procedure in which he was not involved; and
(4) to the extent that it does address the standard of care and causation elements, these
sections of the report are conclusory as to Drs. Sutton and Woofter.
B.   Qualifications of Experts

Appellants argue that Dr. Flye, a thoracic surgeon, is not qualified to opine as to the applicable
standard of care for gastroenterologists Dr. Sutton’s and Dr. Woofter’s endoscopic placement of
a PEG tube.

An expert providing opinion testimony regarding whether a physician departed from the accepted
standards of care must satisfy the requirements set forth in section 74.401.  Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(r)(5)(A).  Section 74.401 provides in pertinent part:

(a)     In a suit involving a health care liability claim against a physician for injury to or death of a
patient, a person may qualify as an expert witness on the issue of whether the physician
departed from accepted standards of medical care only 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) (Vernon Supp. 2008).

An expert testifying in a medical malpractice case need not be a specialist in the particular
branch of the profession for which testimony is offered; the statute setting out the requisite
qualifications focuses not on the defendant doctor’s area of expertise, but on the condition
involved in the claim.  Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.—Houston [14th Dist.] 1999, no
pet.).  Where two fields of medicine overlap, and a procedure is common to more than one field,
a physician in one of these fields may opine as to the standard of care for that procedure in the
other field.  See Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied).   A trial court’s decision on whether a physician is qualified to offer an expert opinion in a
health care liability claim is reviewed under an abuse of discretion standard.   Moore v. Gatica,
269 S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet. denied).

Dr. Flye, who is board certified in thoracic surgery, is currently Chief of Thoracic Surgery at St.
Louis Veterans Administration Hospital, St. Louis, Missouri, and Chief of Surgery, Department of
Surgery, Saint Louis Connect Care Health Systems, St. Louis, Missouri.  Appellants do not argue
that Dr. Flye is not qualified to opine as to the applicable standard of care for cardiothoracic
surgeons Drs. Daniel and Chu, nor do they argue that Dr. Flye is not qualified to offer an opinion
as to the causal relationship between the injury, harm, or damages claimed and the alleged
departure from the applicable standard of care with regard to any of the four defendant
physicians.  They do, however, challenge Dr. Flye’s qualifications to opine as to the applicable
standard of care for gastroenterologists Drs. Sutton and Woofter with regard to the placement of
a PEG tube.

In his report, Dr. Flye states in pertinent part:

I am familiar with the standard of care for the placement of a PEG tube, repair of an esophageal
perforation and the use of a barium swallow…I have placed a PEG tube hundreds of times.  I am
knowledgeable as to the standard of care for surgeons for the care of patients such as Mrs.
Islam.

Appellants argue that Dr. Flye’s statement that he had “placed a PEG tube hundreds of times”
was insufficient because Dr. Flye was required to affirmatively state in his report that his
experience placing percutaneous endoscopic gastrostomy tubes included placing them
endoscopically, rather than surgically.  The family argues that Dr. Flye did not need to go into
such detail in his report.  Appellees further argue that the allegations against Drs. Woofter and
Sutton pertain to their decision to use a PEG tube and the manner in which the doctors inserted
it, and, as a thoracic surgeon who has placed a PEG “hundreds of times,” Dr. Flye is more than
sufficiently qualified to opine as to these basic thoracic issues.  According to his curriculum vitae,
Dr. Flye is a member of the American Gastroenterological Association and he has experience
with endoscopic and laparoscopic procedures.  See Lively v. Blackwell, 51 S.W.3d 637, 639 n.1
(Tex. App.—Tyler 2001, pet. denied) (noting that laparoscopic surgery belongs to the broader
field of endoscopy).  In light of these factors, we conclude that the trial court did not act without
reference to guiding rules or principles when determining that Dr. Flye was qualified to opine on
the standard of care for gastroenterologists Drs. Sutton and Woofter.  See Broders v. Heise, 924
S.W.2d 148, 153 (Tex. 1996).

C.   Standard of Care and Breach

Appellants also contend that Dr. Flye’s report is inadequate because it fails to address the
actions of each physician individually; it does not allege that any of the four defendant physicians
violated a standard of care; and, to the extent that it does address the standard of care element,
these portions of the report are conclusory as to all four defendant physicians.

In his report, Dr. Flye divides the four defendants into two groups: Drs. Woofter and Sutton (the
gastroenterologists who placed the PEG tube and perforated Islam’s esophagus) and Drs. Daniel
and Chu (the thoracic surgeons who repaired the esophageal perforation and administered the
barium swallow study).  With respect to Drs. Woofter and Sutton, Dr. Flye states:

The standard of care for Dr. Woofter and Dr. Sutton in the situation described above required
them to not perforate [Andrea Islam’s] esophagus during the attempted PEG placement.  
Specifically, it was the (sic) breach of the standard of care to perforate the esophagus.  
Additionally, the doctors Woofter and Sutton were aware that Mrs. Islam suffered from squamous
cell carcinoma of the right tonsil and had undergone chemotherapy and radiation treatment prior
to the attempted PEG placement.  Because of the cancer of the esophagus, Drs. Woofter and
Sutton should not have attempted to place the PEG tube. Unfortunately, they did proceed.  Drs.
Woofter and Sutton should have used extreme caution during the procedure so as not to
perforate her esophagus. It is my opinion, based upon a reasonable degree of medical
probability, that in perforating Mrs. Islam’s esophagus, Dr. Woofter and Dr. Sutton breached the
standard of care.  This breach was a proximate cause of Mrs. Islam’s death on August 15, 2005.

With respect to Drs. Daniel and Chu, Dr. Flye opines, in pertinent part:

It is my opinion, based upon a reasonable degree of medical probability, that in failing to repair
Mrs. Islam’s esophageal perforation, Dr. Daniel and Dr. Chu breached the standard of care.  
Additionally, it is my opinion, based upon a reasonable degree of medical probability, that in
ordering a barium swallow, Dr. Daniel and Dr. Chu breached the standard of care.  These
breaches were the proximate causes of Mrs. Islam’s death on August 15, 2005.

It is true that Dr. Flye incorrectly states that “It is my opinion that Dr. Woofter and his surgical
team deviated from the standard of care in the treatment of Mrs. Islam” when discussing the use
of the barium swallow, when he should have said Daniel and Chu.[3]  However, it is also apparent
from the four corners of the report that Dr. Flye understood that Drs. Daniel and Chu were
involved in the decision to administer the barium swallow study, not Drs. Woofter and Sutton.  In
any event, Dr. Flye’s other statements make it clear that he has informed Drs. Woofter and
Sutton of their specific conduct that appellees have called into question—attempting placement
of a PEG tube and the resulting esophageal perforation.  See Palacios, 46 S.W.3d at 879
(stating that expert report must inform defendant of specific conduct plaintiff has called into
question and provide basis for trial court to conclude that claims have merit).  Dr. Flye has also
informed Drs. Chu and Daniel of their specific conduct that appellees have called into question—
the improper repair of the esophageal perforation and the ordering of a barium swallow.  See id.

The doctors rely upon Taylor v. Christus Spohn Health System Corp., Rittmer v. Garza, Doades
v. Syed, and In re Boone to support their contention that Dr. Flye’s report is inadequate as to the
standard of care and breach because it collectively refers to groups of doctors rather than
setting forth individual standards as to each defendant physician.  See Taylor v. Christus Spohn
Health Sys. Corp., 169 S.W.3d 241, 243 (Tex. App.—Corpus Christi 2004, no pet.); Rittmer v.
Garza, 65 S.W.3d 718, 721 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Doades v. Syed, 94
S.W.3d 664, 671–72 (Tex. App.—San Antonio 2002, no pet.); In re Boone, 223 S.W.3d 398, 405–
06 (Tex. App.—Amarillo 2006, no pet.).  We find each of these cases distinguishable.

In Taylor, the defendants included a hospital, a doctors’ association, an emergency room
physician, and a cardiologist, and the expert failed to state what each defendant should have
done to meet the standard of care and failed to do, and how the failure led to the patient’s
death.  Taylor, 169 S.W.3d at 245–46.  In Doades, the expert report combined the standard of
care, breach, and causation into a general assertion that that treating physician and nurse
“[failed] to properly monitor Doades and . . . [failed] to timely identify and properly treat [his]
condition,” a statement the court of appeals deemed conclusory.  Doades, 94 S.W.3d 664, 668,
671–72.  Here, Flye’s report comments on the failure of a uniform duty owed by two doctors to
the same patient.  And, also unlike Taylor and Doades, Flye specifically names the individual
doctors, identifies their specific negligent actions, and discusses their failures according to the
standard of care that group of doctors owed to Islam.

In Rittmer, the plaintiff conceded that her report failed to set out specific standards of care for two
distinct specialists—an oncologist performing a mastectomy and a plastic surgeon performing
reconstructive surgery.  Rittmer, 65 S.W.3d at 722.  Again, this is distinct from Dr. Flye’s clear
articulation of two separate standards of care—one for Drs. Woofter and Sutton (the
gastroenterologists who placed the PEG tube and perforated Islam’s esophagus) and the second
for Drs. Daniel and Chu (the thoracic surgeons who repaired the esophageal perforation and
administered the barium swallow study).

Appellants also argue that, while it may be acceptable to group defendants under certain
circumstances, the expert must establish that the same standard of care applies to the
physicians he groups together.  In re Boone, 223 S.W.3d at 405–06.  In re Boone, however, does
not stand for the proposition that the expert must expressly state that the same standard applies
to a group of defendants.  In that case, the expert merely grouped Boone, a physician’s
assistant, together with physicians and a medical association, and discussed one standard of
care applicable to the group.  The court concluded that “[w]hile relators may disagree with [the
expert’s] opinions concerning the standard of care applicable to each of those individual
defendants, the report contains a fair summary of his opinions and adequately informs them of
the specific conduct called into question.”  Id. (citing Palacios, 46 S.W.3d at 879-80).

The same can be said for the present case.  While appellants may disagree with Dr. Flye’s
opinions concerning the standard of care applicable to each individual defendant, his report
contains a fair summary of his opinions and adequately informs each appellant of his specific
conduct that is being called into question.  Palacios, 46 S.W.3d at 879–80.  This is sufficient to
show a “good faith effort” to comply with section 74.351.

The doctors also argue that Dr. Flye’s statements with regard to the standard of care are
conclusory as to all four defendant physicians because Dr. Flye does not inform the defendants
of what they should have done, but did not do. On the contrary, Dr. Flye informs Drs. Woofter
and Sutton that, based upon Islam’s medical condition, namely her cancer of the esophagus,
they should have used an NG tube rather than a PEG tube and, having decided to insert a PEG
tube, they should have exercised extreme caution so as not to have perforated Islam’s
esophagus.  Dr.  Flye also informs Drs. Daniel and Chu that, in his opinion, they should not have
ordered the barium study after Islam’s surgery and Dr. Flye proceeds to set forth a list of
acceptable alternative procedures.  Having done so, Dr. Flye has sufficiently informed each of
the defendants of what they should have done, but did not do.  This is sufficient to show a “good
faith effort” to comply with section 74.351.

D.   Causation

Appellants assert that Dr. Flye’s report is conclusory as to causation with respect to all four
defendant physicians.  The causation requirement of an expert report in this context must
provide information linking the defendant’s purported breach of the standard of care to the
plaintiff’s injury.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Arkoma Basin
Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008) (defining
conclusory as “[e]xpressing a factual inference without stating the underlying facts on which the
inference is based”).  Dr. Flye’s report sets forth a chain of events, involving breaches of the
standard of care by each of the defendant physicians, which resulted in Islam’s death.  This is
sufficient under section 74.351.  See Patel v. Williams, 237 S.W.3d 901, 905–06 (Tex. App.—
Houston [14th Dist.] 2007, no pet.).

Appellants, citing to Jones v. King, 255 S.W.3d 156 (Tex. App.—San Antonio 2008, pet. denied),
argue that Flye’s report is conclusory because he did not attach the autopsy report or
qualifications of the pathologist who performed the autopsy upon which his report relied for
causation.  The author of the report in Jones relied upon the opinion and documentation of
another physician in addressing causation but did not qualify the other physician or attach
documentation from the other physician.  The court of appeals noted that “the report’s adequacy
must be judged solely by its four corners” and rejected the reliance on the other physician’s
alleged, but absent, documentation to satisfy the causation requirement of section 74.351.  The
family contends that Dr. Flye was not relying upon the autopsy report to prove causation and that
although he refers to the report’s findings, this mere “observation does not substitute for Dr. Flye’
s professional opinion.”  Courts have held that, in addressing causation, a reporting physician
may rely on the opinions of other individuals who have rendered reports or diagnoses.  See Kelly
v. Rendon, 255 S.W.3d 665, 676 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (noting that
“nothing in the health care liability statute prohibits an otherwise qualified physician from relying
on [another opinion] in the formation of the physician’s own opinion”); see also generally Tex. R.
Evid. 703 (stating an expert may base his opinion on facts or data that is not admissible in
evidence if it is of type reasonably relied on by experts in that particular field).  Dr. Flye stated
that Islam’s hospital records demonstrated that Islam developed pneumontitis and aspiration
pneumonia, medical conditions from which she never recovered.  The records informed his
opinion that Islam’s death resulted from the barium leaking into her lungs and surrounding tissue,
causing her to develop pneumontitis and subsequently die from respiratory failure.  Accordingly,
it was not an abuse of discretion for the trial court to find Dr. Flye’s opinions on causation to be
sufficient under section 74.351, a gate-keeping statute intended to weed out frivolous claims.

The doctors also allege that Dr. Flye’s report is insufficient as to causation because he failed to
show Islam’s limited life expectancy allowed her a greater than 50% chance to survive her
cancer, citing Flores v. Eakin, No. 03-07-00477-CV, 2008 WL 3877684 (Tex. App.—Austin 2008,
no pet.) (mem. op.).  Flores involved an appeal from a motion for summary judgment granted in
favor of appellee physicians.  Without citing authority, the doctors argue that even though Flores
involved a motion for summary judgment, its reasoning should be applied to § 74.351 expert
reports.  Summary judgments, however, are subject to an entirely different standard than the one
presented in this case.  Whereas a motion to dismiss seeks to demonstrate that a plaintiff has
not satisfied the procedural requirements of Chapter 74, a motion for summary judgment seeks
to demonstrate that the substance of the claim lacks merit.  See Smalling v. Gardner, 203 S.W.3d
354, 367 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); see also Apodaca v. Russo, 228 S.
W.3d 252, 255 (Tex. App.—Austin 2007, no pet.) (expert report is not required to prove
defendant's liability, but rather to provide notice of what conduct forms the basis for plaintiff’s
complaints); Palacios, 46 S.W.3d at 879 (“to avoid dismissal, a plaintiff need not present
evidence in the report as if it were actually litigating the merits.  The report can be informal in that
the information in the report does not have to meet the same requirements as the evidence
offered in a summary-judgment proceeding or at trial.”).  We therefore find Flores inapplicable.

The two-fold purpose of an expert report under section 74.351 is to inform the defendant of the
specific conduct the plaintiff has called into question, and to provide the trial court with a basis to
determine whether the plaintiff's claims have merit.  Patel, 237 S.W.3d at 906.  Pursuant to this
standard, we conclude that Dr. Flye’s report sufficiently addresses the element of causation,
linking the alleged breaches of the standard of care to Islam’s death—aspiration pneumonia that
developed after barium leaked out of Islam’s improperly repaired esophagus into her lungs and
adjacent tissue.  Therefore, keeping in mind that section 74.351 expert reports are a preliminary
method to show a plaintiff has a viable cause of action that is not frivolous or without expert
support, we hold the trial court acted within its discretion in concluding that Dr. Flye’s report
complied with section 74.351’s causation requirement as to all four defendants.

Having concluded that the trial court acted within its discretion in finding Dr. Flye’s report
sufficient under the statute, we need not address the sufficiency of Dr. Eisner’s report.  See
generally Kelly, 255 S.W.3d at 675–76 (when claimants submitted multiple reports from several
doctors and two nurses, sufficiency of reports as to each appellant would be judged in
aggregate, and sufficiency of each individual report was not determinative); Packard v. Guerra,
252 S.W.3d 511, 525–26 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (each individual
report need not be adequate; instead, adequacy is based on aggregate content of all reports).  
We conclude, therefore, that the court below did not abuse its discretion in denying appellants’
motion to dismiss.

We overrule appellants’ sole issue.

CONCLUSION

We affirm the trial court’s order denying appellants’ motion to dismiss.

                                                    Jim Sharp

                                                    Justice

Panel consists of Justices Jennings, Higley, and Sharp.

[1]           See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008) (requiring
health care liability claimants to serve expert reports no more than 120 days after original petition
filed and defendant to file and serve objections to sufficiency of expert report by 21st day after
report served, or else objections waived); id. § 74.351(b) (providing that if sufficient expert report
not timely served in accordance with subsection (a), court shall, on the motion of affected health
care liability defendant, enter order dismissing claim with prejudice with respect to movant and
awarding movant reasonable attorney’s fees and costs); id. § 74.351(l) (stating that a court “shall
grant a motion challenging the adequacy of an expert report only if it appears to the court, after
hearing, that the report does not represent an objective good faith effort to comply with the
definition of an expert report in Subsection (r)(6)”).

[2]           Specifically, appellants argue that

(1)  neither report addresses the actions of each physician individually;

(2)  neither report included the qualifications of the pathologist who performed the autopsy nor
the autopsy report upon which he relied to establish causation;

(3)  neither expert report shows Islam’s limited life expectancy allowed her a greater than 50%
chance to survive her cancer, thereby failing to show causation;

(4)  Dr. Eisner’s report is inadequate as to Dr. Sutton and Dr. Woofter because

(a) it is critical of a procedure in which neither Dr. Sutton nor Dr. Woofter were involved;

(b) it makes no allegations of a violation of a standard of care against either Dr. Woofter or Dr.
Sutton; and

(c) the standard of care and causation elements of the report are conclusory as to Dr. Sutton
and Dr. Woofter;

(5)  Dr. Eisner’s report is inadequate as to Daniel and Chu because

(a) neither Dr. Daniel nor Dr. Chu were named in it;

(b) Dr. Eisner is not qualified to offer opinions regarding the standard of care for either Dr. Daniel
or Dr. Chu;

(c) it makes no allegations of a violation of a standard of care against either Dr. Daniel or Dr.
Chu; and

(d) the standard of care and causation elements of the report are conclusory as to Dr. Daniel
and Dr. Chu;

(6)  Dr. Flye’s report is inadequate as to Sutton and Dr. Woofter because

(a) Dr. Flye is not qualified to offer opinions regarding the standard of care for either Dr. Sutton
or Dr. Woofter;

(b) it makes no allegations of a violation of a standard of care against either Dr. Woofter or Dr.
Sutton individually or for the procedure in which they were involved;

(c) it criticizes Dr. Woofter for a procedure in which he was not involved; and

(d) the standard of care and causation elements of the report are conclusory as to Dr. Sutton
and Dr. Woofter; and

(7)  Dr. Flye’s report is inadequate as to Dr. Daniel and Dr. Chu because

(a) it makes no allegations of a violation of a standard of care against either Dr. Daniel or Dr.
Chu individually;

(b) the standard of care and causation elements of the report are conclusory as to Dr. Daniel
and Dr. Chu.


[3]           Appellants argue that because Dr. Flye did not identify the members of Dr. Woofter’s
“surgical team,” his report does not address Drs. Sutton, Daniel or Chu in reference to the
barium study.  While this is true with regard to Sutton, it is certainly not the case as to Drs. Daniel
and Chu.  Dr. Flye clearly states elsewhere in his report that “in ordering a barium swallow, Dr.
Daniel and Dr. Chu breached the standard of care.”  Dr. Sutton also argues that because he is
not named in the report with respect to the barium study that Dr. Flye’s expert report is “no
report” to him.  This argument, however, ignores that fact that Dr. Flye criticizes Dr. Sutton
elsewhere in the report when discussing the procedure Sutton was actually involved in—the
insertion of the PEG tube.