Oceans Behavioral Healthcare of Longview, Audubon Behavioral Hospital of Longview, LLC D/B/A Oceans Behavioral Hospital of Longview and Oceans Acquisition, Inc. and Javen v. Cavazos, M.D. v. Nancy M. Butler, Individually and as of the Estate of Huey D. Butler, and on Behalf of the Wrongful Death Beneficiaries of Huey D. Butler ( 2018 )

NO. 12-17-00297-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
OCEANS BEHAVIORAL § APPEAL FROM THE
HEALTHCARE OF LONGVIEW,
AUDUBON BEHAVIORAL HOSPITAL
OF LONGVIEW, LLC D/B/A OCEANS
BEHAVIORAL HOSPITAL OF
LONGVIEW AND OCEANS
ACQUISITION, INC. AND JAVEN V. §
CAVAZOS, M.D.,
APPELLANTS
COUNTY COURT AT LAW NO. 2
V.
NANCY M. BUTLER, INDIVIDUALLY §
AND AS EXECUTOR OF THE
ESTATE OF HUEY D. BUTLER,
DECEASED, AND ON BEHALF OF
THE WRONGFUL DEATH
BENEFICIARIES OF HUEY D.
BUTLER,
APPELLEE § GREGG COUNTY, TEXAS
MEMORANDUM OPINION
Javen V. Cavazos, MD (Dr. Cavazos) and Oceans Behavioral Hospital of Longview,
Audubon Behavioral Healthcare of Longview, LLC d/b/a Oceans Behavioral Hospital of
Longview and Oceans Acquisition, Inc. (Oceans) appeal the court’s order denying their motions
to dismiss Nancy M. Butler’s (Mrs. Butler) suit against them. We affirm.
BACKGROUND
On March 10, 2015, Huey Butler (Mr. Butler) admitted himself to Oceans at the request
of Dr. Cavazos for the adjustment of Mr. Butler’s psychotropic medications. At the time of his
admission to Oceans, Mr. Butler suffered from dementia and major depressive disorder, but was
physically healthy and ambulatory. He remained a patient at Oceans for approximately two
weeks under the care of Dr. Cavazos.
On March 23, Oceans staff found Mr. Butler unresponsive and he was transported to
Longview Regional Hospital by ambulance. Upon arrival at the hospital, Mr. Butler was
diagnosed with brain and kidney damage due to severe dehydration and pneumonia. His body
was contracted and he was unable to lie prone on a hospital bed. Mr. Butler was discharged from
the hospital to a long term care facility where he died five months later.
Mr. Butler’s widow, Mrs. Butler, brought a healthcare liability claim against both Oceans
and Dr. Cavazos. In an attempt to comply with Section 74.351 of the Texas Civil Practice and
Remedies Code, Mrs. Butler served an expert report and curriculum vitae by Dr. Keith Miller on
both Oceans and Dr. Cavazos. Oceans and Dr. Cavazos filed objections to Dr. Miller’s report
and motions to dismiss Mrs. Butler’s claim. The trial court denied their motions and this appeal
followed.
EXPERT REPORT
In their first issue, Oceans and Dr. Cavazos argue that Dr. Miller failed to demonstrate his
qualifications to opine on the standard of care at issue in this case. In issue two, they argue that
Dr. Miller’s report failed to set forth the specific standards of care, identify specific breaches of
those standards, and identify the causal relationship between the alleged breaches and Mr.
Butler’s injuries. Because these issues are related, we will address them together.1
Standard of Review
A trial court’s ruling on qualifications of a medical expert and the sufficiency of an
expert’s report under Chapter 74 is reviewed for an abuse of discretion. Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if it acts without
reference to guiding rules or principles. Van Ness, 461 S.W.3d at 142. However, in exercising
its discretion, it is incumbent upon the trial court to review the report, sort out its content, resolve
1
Mrs. Butler argues that Appellants’ only objection at the trial court level was to her fourth theory of
liability, which is that Appellants improperly administered antipsychotic medications to Mr. Butler. Thus, Mrs.
Butler argues that Appellants waived all complaints regarding her first three theories of liability, which are that
Appellants (1) failed to ensure Mr. Butler remained well hydrated, (2) failed to ensure Mr. Butler was not over-
sedated, and (3) improperly physically and chemically restrained Mr. Butler. A review of the record indicates that
Appellants’ objections and arguments to the trial court sufficiently comport with the arguments they make on
appeal, and we conclude that Mrs. Butler’s waiver argument is without merit. See TEX. R. APP. P. 33.1(a)(1)(A).
2
any inconsistencies, and decide whether the report demonstrated a good faith effort to show that
the plaintiff’s claims have merit. See id. at 144. When reviewing factual matters committed to
the trial court’s discretion, an appellate court may not substitute its judgment for that of the trial
court. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.]
2006, no pet.).
Expert Report Requirements
The Texas Medical Liability Act requires a claimant to serve an expert report early in the
proceedings on each party against whom a health care liability claim is asserted. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a) (West 2017). The Texas Supreme Court has explained
that “eliciting an expert’s opinions early in the litigation [is] an obvious place to start in
attempting to reduce frivolous lawsuits.” Palacios, 46 S.W.3d at 877. The purpose of evaluating
expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits. See
Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013). A valid expert report must
fairly summarize the applicable standard of care; explain how a physician or health care provider
failed to meet that standard; and establish a causal relationship between the failure and the harm
alleged. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West 2017); Potts, 392 S.W.3d at
630.
A report need not cover every alleged liability theory to make the defendant aware of the
conduct at issue, nor does it require litigation ready evidence. Potts, 392 S.W.3d at 631-32. 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. Id. For the
particular liability theory addressed, the report must sufficiently describe the defendant’s alleged
conduct. Id. Such a report both informs a defendant of the behavior in question and allows the
trial court to determine if the allegations have merit. Id. If the trial court decides that a liability
theory is supported, then the claim is not frivolous, and the suit may proceed. Id. If a health care
liability claim contains at least one viable liability theory, as evidenced by an expert report
meeting the statutory requirements, the claim cannot be frivolous. Id.
Expert Qualifications
The proponent of an expert report has the burden to show that the expert is qualified.
Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex. 1996). To qualify as an expert witness on the
issue of whether a physician departed from the accepted standards of care, a witness must (1)
3
practice medicine at the time such testimony is given or was practicing medicine at the time the
claim arose; (2) have 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. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.401(a) (West 2017) (emphasis
added). To determine whether a witness is qualified on the basis of training and experience to
opine regarding departures from the standard of care for physicians, we 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) is actively practicing medicine in rendering medical care
services relevant to the claim. See id. § 74.401(c) (West 2017). To qualify as an expert witness
on the issue of whether a health care provider departed from the accepted standards of care, a
witness must (1) practice health care in a field of practice that involves the same type of care or
treatment as that delivered by the health care provider, if the health care provider is an
individual, at the time the testimony is given, or was practicing that type of health care when the
claim arose; (2) have knowledge of accepted standards of care for health care providers for the
diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3)
qualify on the basis of training or experience to offer an expert opinion regarding those accepted
standards of health care. See id. § 74.402(b) (West 2017) (emphasis added). To determine
whether a witness is qualified on the basis of training and experience to opine regarding
departures of the standard of care for a health care provider, we consider whether the witness is
(1) certified by a state licensing agency or national professional certifying agency or has other
substantial training or experience in the area of health care relevant to the claim and (2) actively
practicing health care in rendering health care services relevant to the claim. See id. § 74.402(c)
(West 2017).
We also examine the witness’s report and curriculum vitae in determining whether a
witness is qualified as an expert. See Caviglia v. Tate, 365 S.W.3d 804, 810 (Tex. App.—El
Paso 2012, no pet.). Not every licensed doctor is qualified to testify on every medical question,
but we must be careful not to draw expert qualifications too narrowly. Adeyemi v. Guerrero,
329 S.W.3d 241, 247 (Tex. App.—Dallas 2010, no pet.). To determine whether an expert report
is sufficient to demonstrate the qualifications of the expert to opine, the trial court should focus
on the medical expert’s “knowledge, skill, experience, training, or education” concerning the
4
specific issue before the court that would qualify the expert to give an opinion on that particular
subject. Broders, 924 S.W.2d at 153.
Dr. Miller’s Qualifications
Dr. Cavazos and Oceans both argue that Dr. Miller is not qualified to opine on the
standards of care applicable in this case because Dr. Miller (1) is not a psychiatrist, and (2) has
not demonstrated knowledge for the accepted standard of care for psychiatric or behavioral
hospitals treating patients that suffer from major depressive disorder with psychotic disturbances
and dementia with behavioral disturbances.
Dr. Cavazos specifically argues that Dr. Miller “does not have the knowledge of the
accepted standards of medical care for the treatment involved in the claim…Dr. Miller is not
qualified to opine as to the accepted standards of care for psychiatrists at behavioral hospitals
who treat patients that suffer from major depressive disorder with psychotic disturbances and
dementia with behavioral disturbances.” She argues that Dr. Miller’s report and curriculum vitae
do not sufficiently articulate how Dr. Miller has knowledge of the standards of care relevant to
this claim. Dr. Cavazos further argues that Dr. Miller is not a psychiatrist and that Dr. Miller
“has failed to establish within the four corners of his report that he has knowledge of the
accepted standard of care for Decedent’s complex psychiatric conditions.” She also argues that
Dr. Miller cannot be qualified based on his training and experience, because he is not board
certified in psychiatry, does not have significant training or experience in the field of psychiatry,
and was not practicing in the field of psychiatry at the time the claim arose.
Oceans similarly argues that Dr. Miller is not qualified because he failed to demonstrate
that he is “familiar with[,] the accepted standard of care for behavioral or psychiatric
hospitals…also there is nothing in his report or curriculum vitae demonstrating that he…is
familiar with the treatment of psychiatric patients in a behavioral or psychiatric hospital or that
he has experience treating such patients in a behavioral or psychiatric hospital.” Oceans further
argues that Dr. Miller does not practice health care that involves the same type of treatment or
care as delivered by Oceans and its personnel.
Dr. Miller’s report and curriculum vitae indicate that he is a practicing physician and is
board certified in family medicine. Dr. Miller states that he has over twenty five years’
experience practicing medicine in office settings, hospitals, nursing homes, rehabilitation centers,
emergency departments, and other healthcare facilities. His curriculum vitae indicates that he
5
currently has physician privileges at various hospitals, nursing homes, and assisted living
facilities, and is the medical director for several home health agencies and hospice facilities. Dr.
Miller reports familiarity with the diagnosis and treatment of patients with depression, dementia,
related illnesses, and their complications and familiarity with the standard of care applicable to
physicians, nurses, healthcare facilities, and their staff that treat patients such as Mr. Butler. Dr.
Miller reports having training similar to the training of the healthcare providers, nurses, and staff
in this case. He further indicates that he is qualified because he has treated many patients with
depression, dementia, and related illnesses and their complications.
According to Dr. Miller, from the time of the medical treatment of Mr. Butler during
March 2015, he had an active clinical practice as a family practitioner that includes providing
care to adult patients, such as Mr. Butler, in healthcare facilities. Dr. Miller notes that during his
career he worked with and supervised medical office staff, hospital staff, nursing home staff, and
rehabilitation center staff, including medical technologists and nurses, in the care of his patients.
He further states that he participated in the development and use of protocols, policies, and
procedures for the care of patients, like Mr. Butler, with depression, dementia, related illnesses,
and their causes and complications. Dr. Miller states that he acquired his education, knowledge,
training, and experience through (1) attending and successfully completing medical school and
residency, which teaches the evaluation, diagnosis, care, and treatment of patients with
depression, dementia, and their complications; (2) the practical experience of diagnosing and
treating patients with depression, dementia, and their complications; (3) discussions with
colleagues at yearly conferences, seminars, and meetings; (4) the study of technical works
routinely published in textbooks, journals, and literature concerning the evaluation, diagnosis,
care, and treatment of patients with depression, dementia, and their complications; (5) routine
discussions and consultations with other physicians who also treat patients with depression,
dementia, and their complications; (6) routine and regular contact with nursing home nurses,
staff, and residents who care for patients with depression, dementia, and their complications; (7)
knowledge and experience giving lectures and in-service conferences to nurses and staff; (8)
experience serving on numerous hospital and nursing home committees; and (9) observing
nurses and their conduct, supervising residents, and instructing nurses and residents in the
evaluation, diagnosis, care, and treatment of patients similar to Mr. Butler, who suffer from
depression, dementia, and their complications.
6
While Dr. Miller’s report and curriculum vitae indicate he is a family medicine doctor
and it is undisputed that Dr. Cavazos is a psychiatrist, “there are certain standards of medical
care that apply to multiple schools of practice and any medical doctor.” Moore v. Gatica, 269
S.W.3d 134, 141 (Tex. App.—Fort Worth 2008, pet. denied) (quoting Blan v. Ali, 7 S.W.3d 741,
746 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Thus, a physician who is not of the same
school of medicine as the defendant is competent to testify if he has practical knowledge of what
is usually and customarily done by a practitioner under circumstances similar to those
confronting the defendant. Moore, 269 S.W.3d at 141.
The factual allegations as set forth in Mrs. Butler’s petition state that Mr. Butler was an
otherwise healthy, ambulatory seventy-four year old male who checked himself into Oceans at
the request of Dr. Cavazos for adjustment of his psychotropic medications related to his major
depression and dementia. The petition alleges that Mr. Butler was physically and chemically
restrained upon admission and was sedated daily to the point he could not ambulate, eat, or
drink, required total assistance with daily activities, and remained in this state until he was found
unresponsive on March 23, 2015. Mr. Butler was then transported to the hospital where he was
diagnosed with brain and kidney damage resulting from severe dehydration and pneumonia. The
petition further alleges that Oceans was chronically understaffed.
Dr. Miller’s report delineates four standards of care for each Dr. Cavazos and Oceans.
One standard discussed by Dr. Miller is that Oceans and Dr. Cavazos should have taken any
necessary measures to ensure that Mr. Butler remained well hydrated at all times. We conclude
that maintaining hydration is one of those “certain standards of medical care that apply to
multiple schools of practice and any medical doctor.” Id.; Blan, 7 S.W.3d at 746. Dr. Miller’s
report and curriculum vitae indicate he is a board certified family physician, practicing medicine
in a field of practice that involves the same type of care or treatment as that provided by
Appellants at the time of the claim and that he has knowledge of accepted standards of medical
care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim.
See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.401(a)(1)(2), 74.402(b)(1)(2). As outlined above,
Dr. Miller articulated significant experience treating patients with dementia and depression in an
in-patient care setting.2
2
In their reply brief and at oral argument, Appellants’ cited Christus Spohn Health System Corp v. Castro
to support their position that because Dr. Miller is not a psychiatrist and has not treated patients in a psychiatric
7
Accordingly, we are not persuaded by Appellants’ argument that Dr. Miller is not
qualified to opine on the standard of care simply because he is not a psychiatrist or has not
practiced in a facility designated as a psychiatric or behavioral hospital. We reach this
conclusion because the appropriate inquiry in determining whether a doctor is qualified to testify
is not his or her area of practice, but his or her familiarity with the issues involved in the claim
before the court. See Menefee v. Ohman, 323 S.W.3d 509, 514 (Tex. App.—Fort Worth 2010,
no pet.). Dr. Miller’s report and curriculum vitae show he is qualified to opine on the methods
for ensuring that patients suffering from dementia and depression remain hydrated in an in-
patient care setting. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.401(a), 74.402(b); see also
Potts, 392 S.W.3d at 631-32; Moore, 269 S.W.3d at 141; Blan, 7 S.W.3d at 746.
As previously stated, if a health care liability claim contains at least one viable liability
theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be
frivolous. Potts, 392 S.W.3d at 631-32. Thus, because Dr. Miller is qualified to opine on at least
one theory of liability, we overrule Appellants’ first issue. See id.
Articulation of Standard of Care
In addition to arguing that Dr. Miller is not qualified, Appellants contend that his report
failed to adequately set forth the applicable standard of care applicable to each Appellant. Dr.
Cavazos argues that Dr. Miller’s opinions regarding the accepted standards of care for Mrs.
Butler’s claims are conclusory and lack specificity. Appellants argue that Dr. Miller did not
sufficiently articulate the steps an ordinary and prudent physician would take under the same or
similar circumstances.
An expert’s report is sufficient if it provides a “fair summary” of the expert’s opinions
about the applicable standards of care, how the physician failed to meet those standards, and how
hospital setting, he is not qualified to testify regarding the standard of care in this case. We conclude that Castro is
distinguishable from the facts in this case. In Castro, the court of appeals held that a physician board certified in
internal medicine and geriatrics was not qualified to opine on the development of pressure ulcers in the context of an
intensive care/trauma unit (ICU). No. 13-13-00302-CV, 2013 WL 6576041 *4 (Tex. App—Corpus Christi, Dec. 12,
2013, no pet.) (mem. op.). The plaintiff was involved in a serious car accident and sustained fracture and dislocation
of his cervical spine, multiple rib fractures, a collapsed lung, and damage to his right phrenic nerve. Id. at *1.
Further, he had no sensation or movement below his chest, putting him at a high risk for skin breakdown. Id.
Subsequently, while still in the ICU, he developed a pressure ulcer. Id. In holding the plaintiff’s expert unqualified,
the court noted that his expert had no ICU or trauma care experience. Id. at *5. We are not persuaded the reasoning
in Castro supports Appellant’s position that there is something inherently different about psychiatry or a facility
being a psychiatric or behavioral hospital in terms of maintaining hydration among patients. In Castro, the court
clearly considered the extreme nature of the plaintiff’s injuries and the fact that an ICU unit serves only, by
definition, severely injured patients. See id. at *5.
8
that failure caused the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.351(r)(6). An adequate expert report “must inform the defendant of the specific conduct the
plaintiff has called into question,” and it “must provide a basis for the trial court to conclude that
the claims have merit.” Palacios, 46 S.W.3d at 879 (Tex. 2001); accord Baty v. Futrell, No. 16-
0164, 2018 WL 665456, at *4 (Tex. Feb. 2, 2018) (not yet released for publication). The report
must provide sufficient information to demonstrate “what care was expected, but not given.”
Palacios, 46 S.W.3d at 880. In considering a challenge to the sufficiency of an expert report, we
must “view the report in its entirety, rather than isolating specific portions or sections.” Baty,
2018 WL 665456, at *4.
Dr. Miller’s report begins by summarizing his background and expertise. He indicates
that he reviewed Mr. Butler’s medical records from Oceans, Longview Regional Medical Center,
and Havencare Nursing and Rehab SNF. Dr. Miller identifies as significant facts that Mr. Butler
was a seventy-four year old male with a history of major depressive disorder and dementia for
which he had been receiving out-patient treatment. He further states that Mr. Butler was
admitted for in-patient treatment at Oceans to better manage his symptoms. He notes that Mr.
Butler was a patient at Oceans for less than two weeks in March of 2015 and that, at some point,
Mr. Butler had an incident wherein he became confused and may have struck at a staff member.
Following this episode, Mr. Butler began showing signs of over-sedation.
According to Dr. Miller, Dr. Cavazos made inconsistent and contradictory progress notes
regarding Mr. Butler’s condition at various times, such as (1) stating Mr. Butler “has been
compliant with medications,” but then stating that Mr. Butler “…has been refusing his
medications for the past several days,” and (2) stating in the discharge summary that “while in
this facility the patient was compliant with medications.” Dr. Miller notes that thirteen days into
his stay, Mr. Butler was transferred from Oceans to Longview Regional Medical Center by
ambulance and, upon admission, found to be suffering from mental status changes secondary to
medication and over-sedation; as well as acute kidney injury, hypovolemia, and shock liver, all
due to dehydration.
Specifically with respect to hydration, Dr. Miller stated that Oceans “should have taken
any necessary measures to ensure this patient remained well hydrated at all times.” He further
states that Oceans was required to
9
recognize and act on an accurate assessment that Mr. Butler was at risk for
dehydration as evidenced by his oral intake record, act on the fact that Mr. Butler was
totally dependent on staff for both anticipation of needs and physical assistance of all
nourishment including fluids, and monitor Mr. Butler’s fluid intake and output each
shift, which must be done consistently and accurately…to evaluate his fluid needs and
response to medications…Oceans Behavioral Hospital …and its staff were further
required to discover and consistently record Mr. Butler’s urine color, urine odor, and
skin turgor, presence of edema, and whether the mucous membranes were moist or dry,
timely notify Mr. Butler’s physician of changes, specifically weight loss or signs or
symptoms of dehydration to prevent further complications, and give Mr. Butler food to
eat and water to drink and help him eat and drink.
Dr. Miller further stated that Dr. Cavazos
made progress notes which claimed she personally examined this patient on
nearly a daily basis…[A]ny reasonable physician practicing according to the acceptable
standards of care would have determined that Mr. Butler was suffering from
dehydration early enough to intervene with appropriate treatment, before such a patient
began to experience the severe complications that are known to develop from untreated
hydration [sic][.]
One case cited by Appellants is Palacios, a case involving claims that arose after a
patient, who had severe brain damage and had been prescribed bed restraints, fell from his
hospital bed. 46 S.W.3d at 876. The expert report cited the nursing notes, which documented
that the patient’s restraints were on ten minutes before the fall and that he was found on the floor
with his restraints on, but not tied to the bed. Id. at 879. The report stated that the patient “had a
habit of trying to undo his restraints and precautions to prevent his fall were not properly
utilized.” Id. The trial court concluded that the report was insufficient and granted the hospital’s
motion to dismiss. Id. at 876. The supreme court held the expert report was deficient because it
did not put the trial court or defendant on notice of what the conduct complained of was, i.e.,
whether the hospital should have “monitored [the patient] more closely, restrained him more
securely, or done something else entirely.” Id. at 880.
Here, Dr. Miller told Oceans and Dr. Cavazos what was expected of them. See Baty,
2018 WL 665456, at *5.3 According to the report, Appellants should have taken the necessary
3
In Baty, the patient’s proffered expert report adequately articulated the applicable standard of care for a
nurse anesthetist in the administration of anesthesia before cataract surgery, despite conclusory language that a block
should be administered “in the proper manner” in order to avoid injuring the eye. Baty, 2018 WL 665456, at *5.
After explaining that an inadequate initial block attempt increased the risk of optic nerve injury and that a block
should be administered in the proper manner, the expert opined that the anesthetist breached the standard of care by
“sticking [the optic nerve] with the retrobulbar needle” “during the administration of the retrobulbar block,” and
10
measures to ensure Mr. Butler remained well hydrated at all times. With respect to Oceans, this
included (1) recognizing and acting on an accurate assessment that Mr. Butler was at risk for
dehydration and was totally dependent on staff for his needs and nourishment, including fluids,
(2) monitoring Mr. Butler’s fluid intake and output each shift to evaluate his fluid needs and
response to medications, (3) discovering and recording Mr. Butler’s urine color, urine odor, and
skin turgor, presence of edema, and consistency of mucous membranes, (4) timely notifying Mr.
Butler’s physician of changes, such as weight loss or signs of dehydration, and (5) giving Mr.
Butler food to eat and water to drink and helping him eat and drink. With respect to Dr.
Cavazos, who noted personally examining Mr. Butler daily, this included determining that Mr.
Butler was suffering from dehydration early enough to intervene with appropriate treatment and
before he began experiencing the severe complications that are known to develop from untreated
hydration. Accordingly, we conclude that Dr. Miller’s report provides a fair summary in that it
sets out what care was expected and not given. See id. Thus, we conclude that Dr. Miller’s
report adequately articulated the standard of care.4 See id.
Causation
Appellants further argue that Dr. Miller’s report is deficient because it does not
adequately summarize the causal relationship between Appellants’ failure to meet the standard of
care and Mr. Butler’s injuries. Dr. Cavazos argues that Dr. Miller’s statements regarding
causation are vague and conclusory and do not adequately address how Dr. Cavazos’s actions
proximately caused Mr. Butler’s injuries
A causal relationship is established by proof that the negligent act or omission was a
substantial factor in bringing about the harm, and that, absent this act or omission, the harm
would not have occurred. Costello v. Christus Santa Rosa Health Care Corp., 141 S.W.3d 245,
249 (Tex. App.—San Antonio 2004, no pet.). Causation is often established in medical
malpractice cases through evidence of a “reasonable medical probability” or “reasonable
probability” that the alleged injuries were caused by the negligence of one or more defendants.
Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex. 2010). In other words, the plaintiff must
therefore, if “sticking [the optic nerve] with the retrobulbar needle” was a breach of the standard of care, then
“proper manner” necessarily encompassed not sticking optic nerve with retrobulbar needle. Id.
4
Appellants also argue that Dr. Miller’s report does not sufficiently articulate the breaches of the standard
of care. The report’s sufficiency as to the breach elements is tied to its sufficiency as to the standard of care, and for
the reasons discussed above, we conclude that Dr. Miller adequately set forth the breaches of the standard of care.
11
present evidence “that it is ‘more likely than not’ that the ultimate harm or condition resulted
from such negligence.” Id. (quoting Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–
400 (Tex. 1993)). An expert may show causation by explaining a chain of events that begins
with a defendant doctor’s negligence and ends in injury to the plaintiff. See McKellar v.
Cervantes, 367 S.W.3d 478, 485 (Tex. App.—Texarkana 2012, no pet.).
A report is deficient if it states only the expert’s conclusions about the standard of care,
breach of the standard of care, or causation. See Ortiz v. Patterson, 378 S.W.3d 667, 671 (Tex.
App.—Dallas 2012, no pet.). An expert cannot simply opine that the breach caused the injury.
Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539. Rather, the report must explain, to a
reasonable degree, how and why the breach of the standard of care caused the injury based on the
facts presented. Van Ness, 461 S.W.3d at 142; Jelinek, 328 S.W.3d at 539-40. The report must
explain the basis of the expert’s statements to link his conclusions to the facts. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); see also Taylor v. Fossett, 320 S.W.3d 570, 575
(Tex. App.—Dallas 2010, no pet.) (expert report must contain sufficiently specific information to
demonstrate causation beyond conjecture).
In determining whether the expert report represents a good faith effort to comply with the
statutory requirements, the court’s inquiry is limited to the four corners of the report. Christian
Care Ctrs., Inc. v. Golenko, 328 S.W.3d 637, 641 (Tex. App.—Dallas 2010, pet. denied) (citing
Palacios, 46 S.W.3d at 878). “We may not ‘fill gaps’ in an expert report by drawing inferences
or guessing what the expert likely meant or intended.” Hollingsworth v. Springs, 353 S.W.3d
506, 513 (Tex. App.—Dallas 2011, no pet.). “We determine whether a causation opinion is
sufficient by considering it in the context of the entire report.” Ortiz, 378 S.W.3d at 671.
Dr. Miller’s report, which we previously extensively discussed, sets forth that Mr. Butler
was physically healthy and ambulatory when admitted to Oceans under the care of Dr. Cavazos.
During his stay at Oceans, he had to be taken to the hospital by ambulance where he was found
to suffer from over-sedation and an acute kidney injury, hypovolemia, and shock liver due to
dehydration. Dr. Miller states that had Appellants followed the appropriate standard of care and
ensured that Mr. Butler remained hydrated, more likely than not and to a reasonable degree of
medical and nursing probability and certainty, he would not have suffered from the dehydration
and its related complications, including acute kidney injury, hypovolemia, and shock liver. Dr.
Miller further states that Mr. Butler’s dehydration made him more susceptible to medication side
12
effects, including those resulting from sedation. He explains that had Appellants intervened with
appropriate treatment, Mr. Butler would not have suffered from dehydration and, consequently,
would not have suffered from shock liver, hypovolemia, acute kidney injury, encephalopathy,
unnecessary worsening of his condition, an extensive hospitalization, pain, mental anguish, loss
of dignity, and ultimate death. Therefore, the report links Dr. Miller’s statements to the facts and
explains, to a reasonable degree, how and why the breach of the standard of care caused the
injury based on the facts presented. See Van Ness, 461 S.W.3d at 142; see also Jelinek, 328
S.W.3d at 539–40; Bowie Mem’l Hosp., 79 S.W.3d at 52.
Nevertheless, Dr. Cavazos argues that Dr. Miller’s report is deficient because it fails to
account for the other doctors that treated Mr. Butler after he was discharged from Oceans. We
disagree. It is apparent from Dr. Miller’s report that Mr. Butler suffered from the injuries that
led to his eventual death prior to his discharge from Oceans and Dr. Cavazos’s care.5
Based on the information provided in Dr. Miller’s report, as set forth above, we conclude
that Dr. Miller’s report identifies a chain of events that begins with the defendant’s negligence
and ends with an injury to the plaintiff. See McKellar, 367 S.W.3d at 485. Consequently, Dr.
Miller’s report is sufficient with respect to the element of causation.
Summation
Because Dr. Miller’s report adequately addresses the elements of the standard of care,
breach, and causation as to at least one of Mrs. Butler’s theories of liability, we conclude that the
trial court did not abuse its discretion by finding the report to be adequate under Section 74.351
and denying Appellants’ motions to dismiss. See Van Ness, 461 S.W.3d at 142; see also Potts,
392 S.W.3d at 631-32; Palacios, 46 S.W.3d at 875. We overrule Appellants’ second issue.6
5
Dr. Cavazos cites Columbia Valley Healthcare Sys., L.P. v. Zamarripa as authority for her argument that
Dr. Miller’s report does not adequately address proximate cause. 526 S.W.3d 453, 456 (Tex. 2017), reh’g denied
(Sept. 22, 2017). In that case the supreme court held that the proffered expert reports of a nurse and physician failed
to provide a factual explanation as to how the defendant hospital proximately caused the death of a pregnant patient
by facilitating the patient’s transfer in an ambulance to another facility, during which the patient suffered a placental
abruption and cardiac arrest leading to her death. Id. at 457. However, in that case, according to one of the expert
reports it was the treating physician, not the hospital, that ordered the patient’s transfer, and neither expert explained
how the hospital permitted or facilitated the patient’s transfer or even had a say in the matter. Id. at 461-62.
Accordingly, we are unpersuaded that Zamarippa supports Dr. Cavazos’s argument, as Dr. Miller clearly explained
that had Dr. Cavazos ensured that Mr. Butler remained hydrated, he would not have suffered from acute kidney
injury, hypovolemia, and shock liver.
6
Because we conclude that Dr. Miller is qualified to opine on the standard of care regarding hydration and
because his report meets the Chapter 74 qualifications with respect to the hydration theory of liability, we will not
address Appellants’ argument with respect to the remainder of Dr. Miller’s report. See TEX. R. APP. P. 47.1.
13
CONCLUSION
Having overruled Appellants’ first and second issues, we affirm the trial court’s order
denying Appellants’ motions to dismiss.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 21, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
14
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 21, 2018
NO. 12-17-00297-CV
OCEANS BEHAVIORAL HEALTHCARE OF LONGVIEW, AUDUBON BEHAVIORAL
HOSPITAL OF LONGVIEW, LLC D/B/A OCEANS BEHAVIORAL HOSPITAL OF
LONGVIEW AND OCEANS ACQUISITION, INC. AND JAVEN V. CAVAZOS, M.D.,
Appellants
V.
NANCY M. BUTLER, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF
HUEY D. BUTLER, DECEASED, AND ON BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF HUEY D. BUTLER,
Appellee
Appeal from the County Court at Law No 2
of Gregg County, Texas (Tr.Ct.No. 2017-110-CCL2)
THIS CAUSE came to be heard on the oral arguments, appellate record
and briefs filed herein, and the same being considered, it is the opinion of this court that there
was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, OCEANS BEHAVIORAL HEALTHCARE OF LONGVIEW,
AUDUBON BEHAVIORAL HOSPITAL OF LONGVIEW, LLC D/B/A OCEANS
BEHAVIORAL HOSPITAL OF LONGVIEW AND OCEANS ACQUISITION, INC. AND
JAVEN V. CAVAZOS, M.D., for which execution may issue, and that this decision be certified
to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.