Martha Mourning, FNP and Kharvar Dar, MD v. George Muns

Opinion filed October 24, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00277-CV
__________

MARTHA MOURNING, FNP AND KHAVAR DAR, MD,
Appellants
V.
GEORGE MUNS, Appellee

On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-22-04-0401-CV

MEMORANDUM OPINION
This is a medical malpractice case that concerns the adequacy of expert
reports. Chapter 74 of the Texas Civil Practice and Remedies Code requires all
claimants asserting “health care liability claim[s]” to serve expert reports on each
defendant within 120 days after each defendant’s original answer is filed. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2024). Such reports must
be provided by an expert who is qualified to render the opinions at issue. Id.
§ 74.351(r)(5)–(6). Additionally, the reports must provide “a fair summary of the
expert’s opinions as of the date of the report regarding applicable standards of care,
the manner in which the care rendered by the physician or health care provider failed
to meet the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.” Id.
Appellants Martha Mourning, a family nurse practitioner (FNP), and Khavar
Dar, M.D., appeal from the trial court’s order denying their motion to dismiss under
Chapter 74 based upon their challenge to the adequacy of the expert reports. See id.
§ 51.014(a)(9) (An order denying a motion to dismiss under Section 74.351(b) is
subject to interlocutory appeal.). We reverse and remand.
Background Facts
We note at the outset that Appellee George Muns is pro se both at trial and on
appeal. On August 24, 2020, Muns was “intubated emergently” at a hospital in
Pecos due to respiratory distress. He was subsequently transferred to Odessa
Regional Medical Center (ORMC) via air flight transport. Muns filed suit based on
medical care and treatment that he received at ORMC.
Muns alleged in his third amended petition that on August 24, 2020, due to
inadequate sedation, he woke up in the critical care unit at ORMC while intubated.
He then pulled out both his orogastric and endotracheal tubes. About ten minutes
later, Jodi Bittick, a nurse at ORMC, telephoned a “Mrs. Muns,” 1 Muns’s medical
power of attorney, to inform her that Muns was “sitting up in bed with [a] CPAP on
and is grabbing at [the] mask, secondary to residual medication in his system, but is
stable.” However, there is no record that Bittick attempted to obtain consent for
Muns to be reintubated.

1
Although the record is not entirely clear, it appears that “Mrs. Muns” was likely Sandy Muns, who
is Appellee’s spouse.
2
Several minutes later, Muns was reintubated by Mourning. Muns claimed
that, at the time, “[n]o emergency existed and no diagnostic procedures were
performed to support the procedure.” He alleged that, instead, the medical staff
made a decision that he should be reintubated because “the providers did not want
to have to provide the extra care needed” to prevent him from removing his CPAP
mask.
Muns further alleged that the following morning, he awoke with both arms in
restraints while two nurses performed an IV infusion, which caused severe burning
pain. He claimed that he then attempted to pull his arm away and began trying to
communicate with the staff using hand gestures. In response, charge nurse Michael
Gonzales2 allegedly told Muns that he should “[l]ay back and shut up.” As Muns
continued to gesture, Gonzales allegedly stated that Muns “lost [his] rights” when
he removed his intubation, and reiterated that he was not going to be released from
restraints.
Muns claimed that, several minutes into the procedure, he lost control of his
gag reflex and vomited into the tubes that were placed in his mouth. He reported
that the staff began “scrambling” to clear his airways while he continued to struggle
against his restraints.
According to Muns, Dr. Dar appeared in the room approximately ten minutes
later. Standing near the bedside, Dr. Dar allegedly berated Muns, repeatedly calling
him an “a-----e.” Muns asserted that he then started to fear for his life, and began
crying. In response, Dr. Dar allegedly told Muns:
Ok a-----e, you are going to do exactly what I say a------e and if you are an a-
-----e like you were yesterday, I’m going to intubate you, sedate you, and place
you on a ventilator for 2 weeks.

2
Gonzales is not a party to this appeal.
3
After Dr. Dar left the room, Muns wrote a note asking whose “brite[sic] idea”
it was to “leave [him] un[-]sedated,” and that it was “[n]ot funny” to “intubate [him]
[and] paralyze [him] for [two] wks[sic].” Following these events, Muns was
extubated and released against medical advice.
Muns filed suit against Dr. Dar, Mourning, Gonzales, and ORMC 3 asserting
causes of action for medical battery and negligence. He contended that he suffers
“severe PTSD, Anxiety, and depression” caused by the medical care that he
received, requires psychotropic medications, is no longer able to work in the health
care industry, has daily nightmares and insomnia, requires weekly trauma
counseling, and requires a service animal. Muns sought to recover damages of
$11,289,317.52.
Muns served reports from Dr. David Henderson and Catherine C. Wilson, a
registered nurse, on Mourning and Dr. Dar in an attempt to comply with Chapter 74.
Dr. Dar and Mourning each filed motions to dismiss Muns’s claims against them
based on alleged deficiencies in the expert reports. The trial court denied both
motions, and this appeal followed.
Analysis
In their issue on appeal, Dr. Dar and Mourning allege that the trial court
abused its discretion when it found that the expert reports served by Muns are a good
faith effort to satisfy the requirements of Chapter 74.
We note at the outset the similarity of the facts in this case and those in
Murphy v. Russell, 167 S.W.3d 835 (Tex. 2005). Russell, the claimant in Murphy,
alleged that Murphy, an anesthesiologist, administered a general anesthetic without
her consent. Id. at 836. Russell asserted a claim for battery against Murphy. Id. at

3
ORMC also is not a party to this appeal.
4
837. In addressing the need for Russell to comply with the expert report
requirement, the Texas Supreme Court stated:
Russell’s battery claim arises from treatment rendered by
Murphy. Medical treatment will not constitute a battery unless it is
provided without the patient’s consent. But failure to obtain consent
does not automatically result in liability. There may be reasons for
providing treatment without specific consent that do not breach any
applicable standard of care. The existence or nonexistence of such
reasons is necessarily the subject of expert testimony. In enacting
former article 4590i, the Legislature intended health care liability
claims to be scrutinized by an expert or experts before the suit can
proceed. Russell cannot avoid the requirements of former article
4590i4, including its expert report requirement and caps on damages,
by filing a bare-bones pleading that asserts battery based on lack of
consent. We reaffirm that a claimant cannot escape the Legislature’s
statutory scheme by artful pleading.

It must also be borne in mind that article 4590i’s expert report
requirement establishes a threshold over which a claimant must proceed
to continue a lawsuit. It does not establish a requirement for recovery.
It may be that once discovery is complete and the case is tried, there is
no need for expert testimony. In a case alleging lack of consent, a
factfinder might reasonably conclude that there was a battery and that
some damages were sustained without the need for expert testimony.

Id. at 838 (footnotes omitted). Thus, expert testimony may or may not be necessary
in the trial of Muns’s claims for medical battery. See id. However, even in such
cases, “the Legislature envisioned that discovery and the ultimate determination of
what issues are submitted to the factfinder should not go forward unless at least one
expert has examined the case” and satisfied the requirements of Chapter 74. See id.

Former Article 4590i was the predecessor statute of Chapter 74 of the Texas Civil Practices and
4

Remedies Code. See Murphy, 167 S.W.3d at 836 n.1.
5
We review a trial court’s ruling on a motion to dismiss a health care liability
claim for an abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 223 (Tex. 2018) (per curiam); Am. Transitional Care Centers of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Daughtery v. Schiessler, 229 S.W.3d
773, 774 (Tex. App.—Eastland 2007, no pet.). A trial court abuses its discretion if
it acts without reference to any guiding rules or principles or acts in an arbitrary or
unreasonable manner. Daughtery, 229 S.W.3d at 774 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)). In analyzing a report under
this standard, we consider only the information contained within the four corners of
the report. Abshire, 563 S.W.3d at 223. We defer to the trial court’s factual
determinations if supported by the evidence, but review its legal determinations de
novo. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per
curiam).
Chapter 74 provides 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.” CIV. PRAC. & REM. § 74.351(l). An “expert report” is, in turn,
defined as:
a written report by an expert that provides a fair summary of the
expert’s opinions as of the date of the report regarding applicable
standards of care, the manner in which the care rendered by the
physician or health care provider failed to meet the standards, and the
causal relationship between that failure and the injury, harm, or
damages claimed.
CIV. PRAC. & REM. § 74.351(r)(6). An expert report demonstrates a “good faith
effort” when it (1) informs the defendant of the specific conduct the plaintiff has
called into question, and (2) provides a basis for the trial court to conclude that the
claims have merit. Baty v. Futrell, 543 S.W.3d 689, 693–94 (Tex. 2018). “A report
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that merely states the expert’s conclusions about the standard of care, breach, and
causation” is insufficient. Palacios, 46 S.W.3d at 879; accord Abshire, 563 S.W.3d
at 223.
Dr. Dar maintains that Dr. Henderson’s report is not a good faith effort to
comply with Chapter 74 because he “fails to link the facts to his opinions,” showing
“how [Muns’s] injuries were caused by Dr. Dar.” Likewise, Mourning maintains
that, among other things, Dr. Henderson’s report is conclusory and speculative on
the issue of causation.
Dr. Henderson’s report only mentions Dr. Dar by name at the outset to
identify Dr. Dar as agreeing to accept Muns’s transfer to ORMC. Otherwise,
Dr. Henderson’s report does not reference Mourning by name. With respect to
causation, Dr. Henderson’s report reads, in relevant part, as follows:
The nursing report indicated the patient had a very unsatisfactory stay
at the hospital and had developed issues with the attending physician,
apparently a patient allegation of abuse had been filed with the hospital
supervising administrator at that time, concerning both the attending
physician and a charge nurse involved in the encounter with the patient
extubated at 09:50 a.m. on 08/25/2020 where the alleged abuses took
place. There is very little documentation during the hour Mr. Muns
alleged the abuse by staff took place, if allegations are true, this is a
serious departure of the standard for delivery of ethical care. Physicians
are to be always professional and never to be verbally abusive to other
staff, patients, and their families at any time. If these allegations Mr.
Muns says are true, the events could have caused him mental and
physical trauma. With the evidence that I have seen in Mr. Muns’
medical record from Odessa Regional Medical Center and the care he
has received since the alleged incident, I feel Mr. Muns is being truthful
about the abuse. Mr. Muns suffers from severe PTSD and is unable to
work and has trouble with daily functioning. He continues to receive
psychiatric treatment weekly with medication administration.
(emphasis added).

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As to causation, an “expert must explain, based on facts set out in the report,
how and why” a health care provider’s breach proximately caused the injury.
Columbia Valley Healthcare Sys., LP v. Zamarripa, 526 S.W.3d 453, 459–60 (Tex.
2017). Proximate cause has two components: (1) foreseeability; and (2) cause-in-
fact. Id. at 460. An act or omission qualifies as the cause-in-fact of harm if, but for
the act or omission, the harm would not have occurred. Id. A bare expert opinion
that only states that the alleged breach caused the injury does not suffice as a “good-
faith effort.” Id.
“An expert cannot simply opine that the breach caused the injury.” Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010). “Instead, the expert must go further and
explain, to a reasonable degree, how and why the breach caused the injury based on
the facts presented.” Id. at 539–40. Although Muns’s description of the treatment
he allegedly received suggests a wide array of behavior that, if true, can be
characterized as abusive, Dr. Henderson’s report does not identify any specific
abusive behavior that caused the psychological conditions described therein. See
Ehrlich v. Miles, 144 S.W.3d 620, 628 (Tex. App.—Fort Worth 2004, pet. denied)
(report failed to identify negligent activities that independently caused damages
and/or state that multiple activities combined to cause damages). Furthermore,
Dr. Henderson does not explain how Mourning’s or Dr. Dar’s purported behavior
caused the alleged psychological injuries that Muns suffered. Instead, he merely
states his global conclusions about causation. Conclusory statements such as this do
not constitute a good faith effort to comply with the statute. See Barko v. Genzel,
123 S.W.3d 457, 460 (Tex. App.—Eastland 2003, no pet.) (citing Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52–54 (Tex. 2002); Palacios, 46 S.W.3d at 879);
Doades v. Syed, 94 S.W.3d 664, 672 (Tex. App.—San Antonio 2002, no pet.) (expert
report contained “mere conclusions regarding breach and causation”).

8
Additionally, the causal connection between the defendant’s negligence and
the claimed injuries cannot be based upon mere conjecture, speculation, or
possibility. Morrell v. Finke, 184 S.W.3d 257, 272 (Tex. App.—Fort Worth 2005,
pet. denied) (citing Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.
1995)). Here, Dr. Henderson’s statement, “[i]f these allegations Mr. Muns says are
true, the events could have caused him mental and physical trauma,” is nothing more
than a statement of possibility. See id. As such, Dr. Henderson’s report did not
provide a basis for the trial court to conclude that Muns’s claims have merit. See
Jelinek, 328 S.W.3d at 539–40.
Wilson’s report also attempts to address the issue of causation. 5 However,
Wilson, as a registered nurse, is not a physician qualified to opine on medical
causation. See CIV. PRAC. & REM. § 74.351(r)(5)(C) (“with respect to a person
giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care,” an
“expert” must be a physician who is otherwise qualified to render the opinion); see
also, e.g., Kelly v. Rendon, 255 S.W.3d 665, 675 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (“[U]nder the statute, a nurse is not qualified to render an opinion on
medical causation.”).
We conclude that the trial court abused its discretion when it determined that
Dr. Henderson’s report constitutes a good faith effort to satisfy the statutory
requirements for causation. We also conclude that the trial court abused its
discretion to the extent that it relied on Wilson’s report to establish causation, since
Wilson is not qualified to render such opinion under the terms of the statute. Because

5
In her report, Wilson states that “Mr. Muns is claiming he suffered severe emotional distress and
was diagnosed with PTSD and anxiety/Depression [sic] disorder and requires continuous mental Health
interventions and medications. . . . If this assault on Mr. Muns took place, it would have been prevented if
Mr. Muns was not re-intubated.”
9
our conclusions regarding the causation element of the reports are dispositive of the
appeal, we do not reach Mourning’s arguments regarding other opinions that are
expressed in the reports. See TEX. R. APP. P. 47.1.
The issue raised by Dr. Dar and Mourning are sustained in part. In this regard,
both Dr. Dar and Mourning seek a reversal and rendition in their favor with prejudice
along with a remand for the trial court to determine their recovery of reasonable
attorney’s fees and costs. In doing so, Dr. Dar and Mourning are essentially asserting
that Dr. Henderson’s and Wilson’s reports were so deficient as to constitute no report
at all.
Section 74.351(c) provides:
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 to the claimant in order to cure
the deficiency. If the claimant does not receive notice of the court’s
ruling granting the extension until after the applicable deadline has
passed, then the 30-day extension shall run from the date the plaintiff
first received the notice.
CIV. PRAC. & REM. § 74.351(c). As noted above, the expert reports are deficient,
and thus, the trial court abused its discretion by denying the motions to dismiss.
However, this is the first time in this cause that the expert reports have been found
deficient. The statute allows a trial court to grant one thirty-day extension for the
claimant to cure a deficiency in an expert report. Id. A trial court must grant an
extension if the report’s deficiencies are curable. Zamarripa, 526 S.W.3d at 461;
Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). While we have determined
that the expert reports are deficient, we cannot conclude that they are incurable.
Therefore, the trial court must have an opportunity to consider whether an extension
should be granted under the statute. See Zamarripa, 526 S.W.3d at 461.

10
This Court’s Ruling
We reverse the order of the trial court denying Dr. Dar’s and Mourning’s
motions to dismiss, and we remand this cause to the trial court for further
proceedings consistent with this opinion.

JOHN M. BAILEY
CHIEF JUSTICE

October 24, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

11