Mike Bismar, M.D. v. Dorothy A. Morehead, Vaughn R. Morehead, and James P. Morehead, III, Individually and as Heirs at Law of Gloria Morehead

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-360-CV
MIKE BISMAR, M.D. APPELLANT
V.
DOROTHY A. MOREHEAD, APPELLEES
VAUGHN R. MOREHEAD, AND
JAMES P. MOREHEAD, III,
INDIVIDUALLY AND AS HEIRS
AT LAW OF GLORIA MOREHEAD,
DECEASED
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON REMAND
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In this interlocutory appeal, appellant Mike Bismar, M.D., complains of the
trial court’s denial of his motion to dismiss with prejudice the health care
liability claims of appellees Dorothy A. Morehead, Vaughn R. Morehead, and
1
 See Tex. R. App. P. 47.4.
James P. Morehead, III, individually and as heirs at law of Gloria Morehead,
Deceased. We originally dismissed the appeal for want of jurisdiction based on
our decision in Jain v. Stafford 2 in which we held that an order denying a
motion to dismiss based on the alleged inadequacy of an expert report is not
appealable by interlocutory appeal. 3 In Lewis v. Funderburk, 4 however, the
Texas Supreme Court held that appellate courts have jurisdiction to review such
orders by interlocutory appeal. 5 Following Funderburk, the Texas Supreme
Court reversed our order dismissing this appeal and instructed us that we do
have jurisdiction. 6 We now consider the appeal of this case on the merits. We
affirm.
2
 214 S.W.3d 94, 97 (Tex. App.—Fort Worth 2006, pet. dism’d).
3
 See Bismar v. Morehead, No. 02-07-00360-CV, 2007 WL 4233521,
at *1 (Tex. App.—Fort Worth Nov. 29, 2007) (mem. op.), rev’d, 262 S.W.3d
805 (Tex. 2008).
4
 253 S.W.3d 204 (Tex. 2008).
5
 Id. at 205–07 (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)
(Vernon Supp. 2009) (allowing for dismissal with prejudice and reasonable
attorney’s fees and costs awarded to defendant if “expert report has not been
served” by claimant within period specified by statute)).
6
 Bismar v. Morehead, 262 S.W.3d 805, 806 (Tex. 2008).
2
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about September 9, 2004, Gloria Morehead was admitted to
Kindred Hospital Tarrant County–Fort Worth Southwest (the Hospital) to
recover from surgery. After her admission to the Hospital, Gloria fell and
injured her arm. The injury left her arm severely bruised and swollen from
internal bleeding, which ultimately led to her death from hypovolemic shock.
Appellant Dr. Mike Bismar was one of three physicians who treated Gloria after
her fall.
On September 8, 2006, the Moreheads filed health care liability claims
against the Hospital, Dr. Bismar, and two other treating physicians, seeking
survival and wrongful death damages individually and as heirs of Gloria’s estate.
The suit was predicated upon the alleged negligent failure of Dr. Bismar and the
other defendants to timely and properly diagnose and treat Gloria for the
bleeding in her left arm.
In January 2007, the Moreheads served Dr. Bismar with the report of Dr.
Charles E. Oswalt. Dr. Bismar objected to the report and moved to dismiss on
the grounds that the report was conclusory as to his negligence and causation
of Gloria’s death, failed to specifically describe how his treatment breached the
standard of care, and improperly attributed a collective standard of care and
breach to all of Gloria’s treating physicians without addressing Dr. Bismar
3
individually. On May 10, 2007, the trial court granted a thirty-day extension
to allow the Moreheads to supplement the report pursuant to section
74.351(c).7 In May 2007, the Moreheads served Dr. Oswalt’s supplemental
report.
Dr. Bismar objected to the supplemental report and moved to dismiss on
the grounds that Dr. Oswalt again addressed Dr. Bismar and the other
defendants collectively and failed to provide specific information regarding the
standard of care, breach, and causation attributable to Dr. Bismar. The trial
court overruled Dr. Bismar’s objections and denied his motion to dismiss. Dr.
Bismar then brought this appeal.
II. SUFFICIENCY OF DR. OSWALT’S EXPERT REPORT
In his sole issue on appeal, Dr. Bismar contends that Dr. Oswalt’s
narrative report of the applicable standards of care, breach, and causation is
legally insufficient under section 74.351 of the Texas Civil Practice and
Remedies Code.
7
 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (Vernon Supp.
2009) (“If an expert report has not been served within the period specified by
Subsection (a) because elements of the report are found deficient, the court
may grant one 30-day extension . . . .”).
4
A. Standard of Review
We review a trial court’s determination of a motion to dismiss under
section 74.351 for an abuse of discretion. 8 To determine whether a trial court
abused its discretion, we must decide whether the trial court acted without
reference to any guiding rules or principles; in other words, we must decide
whether the act was arbitrary or unreasonable. 9 An appellate court cannot
conclude that a trial court abused its discretion merely because the appellate
court would have ruled differently in the same circumstances. 10 However, a
trial court has no discretion in determining what the law is or in applying the
law to the facts, and “a clear failure by the trial court to analyze or apply the
law correctly will constitute an abuse of discretion.” 11
8
 Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (applying abuse
of discretion standard to former Texas Revised Civil Statute article 4590i,
§ 13.01 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351)); Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex.
2001) (same); Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d
285, 290–91 (Tex. App.—Fort Worth 2008, pet. denied) (applying abuse of
discretion standard to Tex. Civ. Prac. & Rem. Code Ann. § 74.351).
9
 Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
10
 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558
(Tex. 1995).
11
 Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Ehrlich v.
Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).
5
B. Texas Civil Practice and Remedies Code Section 74.351
Section 74.351 provides that, within 120 days of filing suit, a plaintiff
must serve expert reports for each physician or health care provider against
whom a liability claim is asserted. 12 An expert report is a written report by an
expert that provides a fair summary of the expert’s opinions regarding the
applicable standard of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standard, and the causal
relationship between that failure and the injury, harm, or damages claimed. 13
If a claimant timely furnishes an expert report, a defendant may file a motion
challenging the report’s adequacy. 14 A trial court may grant a motion to dismiss
based on the alleged inadequacy of an expert report only if it finds, after a
hearing, “that the report does not represent an objective good faith effort to
comply with the definition of an expert report” in the statute. 15
To constitute an objective good faith effort to comply with the expert
report requirements, the report must include the expert’s opinions on each of
the elements identified in the statute—standard of care, breach, and
12
 Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009).
13
 Id. § 74.351(r)(6) (Vernon Supp. 2009).
14
 See id. § 74.351(a), (c), (l) (Vernon Supp. 2009).
15
 Id. § 74.351(l).
6
causation.16 In detailing these elements, the Texas Supreme Court has made
clear that an expert report must provide enough information to fulfill two
purposes: (1) inform the defendant of the specific conduct the plaintiff has
called into question and (2) provide a basis for the trial court to conclude that
the plaintiff’s claims have merit. 17 To fulfill these purposes, the information in
the report need not meet the same requirements as evidence offered in a
summary judgment proceeding or at trial. 18 Nor is it necessary that the report
need marshal all the plaintiff’s proof. 19 A report, however, that merely states
the expert’s conclusions, or omits any of the statutory requirements is
insufficient. 20 In assessing the report’s sufficiency, the trial court may not draw
any inferences from outside the report. 21 Rather, the court must rely
exclusively on the information contained within the report’s four corners. 22
16
 Palacios, 46 S.W.3d at 878–79; Thomas v. Alford, 230 S.W.3d 853,
856 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
17
 Palacios, 46 S.W.3d at 879; Gray v. CHCA Bayshore L.P., 189
S.W.3d 855, 859 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
18
 Palacios, 46 S.W.3d at 878–79; Thomas, 230 S.W.3d at 856.
19
 Palacios, 46 S.W.3d at 878–79; Thomas, 230 S.W.3d at 856.
20
 Palacios, 46 S.W.3d at 879.
21
 Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002);
Palacios, 46 S.W.3d at 878.
22
 Bowie Mem'l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 878.
7
C. Standard of Care, Breach, and Causation
Dr. Bismar contends that Dr. Oswalt’s report is conclusory and
speculative in its assertion of the standard of care, breach, and causation
because it 1) asserts collective standards as to Gloria’s death without
differentiating between Dr. Bismar and the other treating physicians; 2)
incorrectly states that Dr. Bismar “took no measures to treat Gloria [] for
hypovolemic shock until she was ‘found to be unresponsive’ in the afternoon
of September 22, 2004,” when, in fact, Dr. Bismar ordered a transfusion after
examining her arm; and 3) contains no reference to the timing of Dr. Bismar’s
treatment of Gloria.
Statements concerning the standard of care and breach must identify
what care was expected, and the care that was not given, with such specificity
that inferences need not be indulged to discern them. 23 The same standard of
care may apply to more than one defendant only if they owe the same duty to
the patient. 24 In addition, an expert report must not be conclusory in its
23
 Benish v. Grottie, 281 S.W.3d 184, 198 (Tex. App.—Fort Worth
2009, pet. denied); Thomas, 230 S.W.3d at 858.
24
 Compare Barber v. Dean, — S.W.3d. —, No. 02-07-353-CV, 2009
WL 3490952, at *10 (Tex. App.—Fort Worth Oct. 29, 2009, no pet. h.) (“The
report is not insufficient for ‘grouping’ [a]ppellees together because Dr. Wagner
specifically states that they all owed the same duty to ensure the proper
positioning and padding of Malcolm's arm.”), and In re Stacy K. Boone, P.A.,
223 S.W.3d 398, 405–06 (Tex. App.—Amarillo 2006, no pet.) (holding that
8
explanation of causation; it must explain the basis of its statements sufficiently
to link its conclusions to the facts. 25 The report may only assert that multiple
defendants are all negligent if it provides an explanation of how each defendant
specifically breached the standard and how each defendant’s breach caused or
contributed to the cause of injury. 26
In his report, Dr. Oswalt states that Gloria died from hypovolemic shock
on September 22, 2004, due to uncontrolled bleeding after her fall which Dr.
Bismar failed to timely treat. His report then describes the standard of care for
treating Gloria, how Dr. Bismar’s treatment of Gloria fell below this standard of
care, and how his breach allegedly caused her death:
single standard of care applicable to physicians and physician assistant was
sufficient because all participated in administering treatment), with Polone v.
Shearer, 287 S.W.3d 229, 235 (Tex. App.—Fort Worth 2009, no pet.) (holding
report that set forth single standard of care applicable to physician and
physician assistant insufficient to represent a good faith effort because
“[a]lthough the standards of care might be the same for both [the physician and
physician assistant], the report does not specifically state as much”).
25
 Polone, 287 S.W.3d at 236; see also Bowie Mem'l Hosp., 79 S.W.3d
at 52–53; Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex. App.—San
Antonio 2004, no pet.).
26
 Polone, 287 S.W.3d at 233–34; Taylor v. Christus Spohn Health Sys.
Corp., 169 S.W.3d 241, 244 (Tex. App.—Corpus Christi 2004, no pet.); see
Wood v. Tice, 988 S.W.2d 829, 831 (Tex. App.—San Antonio 1999, pet.
denied) (stating that report must specifically refer to defendant and discuss how
that defendant breached applicable standard of care).
9
Mrs. Morehead was pronounced dead at 6:15 p.m. on
September 22, 2004. She died in the hospital from uncontrolled
bleeding which resulted in hypovolemic shock that was left
untreated.
As I stated in my January report regarding Drs. Hisham
Bismar, McLaughlin and Mike Bismar, all three physicians were
involved in the care and treatment of Mrs. Morehead after she
injured her arm on September 21, 2004. The standard of care set
forth in my initial report applies equally to all three physicians,
including Dr. Hisham Bismar and Dr. Mike Bismar. Although most
of the records are not specific in identifying “Dr. Bismar,” Dr. Mike
Bismar has signed several progress notes, including one after his
examination of Mrs. Morehead’s bleeding arm. Dr. Hisham Bismar
is identified several times as the recipient of the progress reports
regarding Mrs. Morehead.
After Mrs. Morehead’s fall on September 21, 2004, it was
apparent from the appearance of her swollen and bleeding arm,
from her “red, red bloody urine,” from her low hemoglobin and low
hematocrit (approaching critical levels), from the very large
hematoma that continued to increase in size, from the patient’s
description of [sic] “weak and confused,” from her blood pressure
that continued to drop, and from her severe pain (a “10" on a 1-10
scale), all which are symptomatic of internal bleeding, that Mrs.
Morehead was hypovolemic. Lovenox, a drug which would
exacerbate the patient’s condition, was not discontinued until the
following day. But most importantly, as stated in my initial report,
it is the standard of care for physicians caring for a hospitalized
patient who is hemorrhaging to control the bleeding as soon as it
is detected. In this case the physicians were aware that Mrs.
Morehead was hemorrhaging on September 21, 2004. Abnormal
quatting due to the Lovenox should have been corrected at the first
sign of bleeding. This correction was not ordered.
As stated in my initial report, the standard of care is to
control the patient’s bleeding and to treat the hypovolemic shock
vigorously with crystalloid and blood transfusions. In cases such
as Mrs. Morehead’s, shock related to injury and/or hemorrhage is
10
a state of circulatory failure or collapse in which there is insufficient
return of blood to the heart, a sharp decrease in the blood pressure
of the arteries, and a continuing loss of blood flow to the body
tissues and organs. Shock and the associated degree of circulatory
collapse may be so profound as to cause death in a situation where
the precipitating injury would not, in itself, normally be fatal.
Consequently, the standard of care, as set forth in my initial report,
is to control the bleeding and to replace the blood lost by
hemorrhage with blood transfusions. In most cases, following the
standard of care will relieve shock and permit recovery. However,
time is of the essence in initiating treatment once the tell-tale signs
are recognized. It should go without saying that it is the standard
of care for a physician who is treating patients in a hospital setting
to be alert for symptoms of hemorrhaging and to take immediate
action to control the bleeding while treating vigorously with
crystalloid and blood until the hypotension is corrected. Drs.
Bismars’ failure to do so was a breach of the standard of care
which resulted in the death of Gloria Morehead.
Mrs. Morehead had exhibited classic symptoms of
hypovolemic shock as early as September 21, 2004. The
contusion on her left arm caused by the hemorrhage was severe,
as shown in the hospital photographs. Nevertheless, neither Dr.
Hisham Bismar nor Dr. Mike Bismar took no [sic] measures to treat
Gloria Morehead for hypovolemic shock until she was “found to be
unresponsive” in the afternoon of September 22, 2004. Mrs.
Morehead, who was declared dead at 6:15 p.m. on September 22,
2004, never received a blood transfusion. She died as a result of
hypovolemic shock due to her treating doctors’ failure to meet the
standard of care.
Dr. Oswalt’s report states that Dr. Bismar should have taken “immediate
action” to control Gloria’s bleeding by treating her hypovolemic shock
“vigorously with crystalloid and blood transfusions,” but that he failed to do so.
According to Dr. Oswalt, this standard applies equally to all three treating
11
physicians, “including . . . Dr. Mike Bismar.” 27 Thus, Dr. Oswalt’s report states
a standard of care for treating internal bleeding and hypovolemic shock—taking
“immediate action to control the bleeding while treating vigorously with
crystalloid and blood until the hypotension is corrected”—that specifically
applies to Dr. Bismar. The report also provides a specific explanation as to how
Dr. Bismar breached the standard—failure to take “immediate action” to treat
Gloria’s hypovolemic shock in accordance with the standard of care set forth
in the report.
In addition, the report provides specific information as to causation. The
report first states that uncontrolled internal bleeding that results in hypovolemic
shock, if not treated immediately, may cause profound circulatory collapse that
leads to death. It then specifically states that the failure of Dr. Bismar to take
“immediate action” to control Gloria’s bleeding or replace her lost blood when
he examined her arm on September 22, 2004, caused the hypovolemic shock
which led to her death the same day. 28
27
 See In re Stacy K. Boone, 223 S.W.3d at 405–06; Barber, 2009 WL
3490952, at *10.
28
 See Polone, 287 S.W.3d at 233–34; Taylor, 169 S.W.3d at 244.
12
Based on the information contained in the four corners of Dr. Oswalt’s
report, and after giving full consideration to Dr. Bismar’s challenges to the
report, we conclude that the report discusses the standard of care, breach, and
causation with sufficient specificity to inform Dr. Bismar of the conduct the
Moreheads have called into question and to provide a basis for the trial court
to conclude that the claims have merit. 29 Consequently, we hold that the report
represents an objective good faith effort to comply with civil practice and
remedies code section 74.351(r)(6)’s definition of an expert report. 30
Therefore, the trial court did not abuse its discretion by denying Dr. Bismar’s
motion to dismiss. We overrule Dr. Bismar’s sole issue on appeal.
III. CONCLUSION
We affirm the trial court’s October 2, 2007, order denying Dr. Mike
Bismar’s motion to dismiss.
PER CURIAM
PANEL: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.
DELIVERED: December 10, 2009
29
 See Palacios, 46 S.W.3d at 875, 878.
30
 See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6).
13