CHI St. Luke's Community Health Services – the Woodlands Hospital v. Sharon Smith

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-25-00044-CV
__________________

CHI ST. LUKE’S COMMUNITY HEALTH
SERVICES – THE WOODLANDS HOSPITAL, Appellant

V.

SHARON SMITH, Appellee

__________________________________________________________________

On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 24-04-06465-CV
__________________________________________________________________

MEMORANDUM OPINION

This is an interlocutory accelerated appeal from the trial court’s order

overruling the objections of Defendant CHI St. Luke’s Community Health Services

– The Woodlands Hospital (“Appellant” or “SLWH”) to Plaintiff Sharon Smith’s

(“Appellee” or “Smith”) second amended Chapter 74 expert report and denying

SLWH’s motion to dismiss Smith’s health care liability claim. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.351; see also id. § 51.014(a)(9) (providing for interlocutory

1
appeal of an order denying relief under section 74.351). SLWH timely filed this

appeal, arguing that the trial court erred in overruling its objections and in failing to

dismiss Smith’s health care liability claim. We affirm.

Background

Allegations in Smith’s Petition

On April 24, 2024, Smith filed her Original Petition stating claims for

negligence and gross negligence against Defendants Katherine Luu, MD, Katherine

Luu, MD, PLLC, and Steven Ellis, DO,1 related to their care and treatment of Smith,

and claims against “St. Luke’s Community Health Services, St. Luke’s Health

System Corporation, and St. Luke’s The Woodlands Hospital”2 for negligence and

gross negligence under the doctrine of respondeat superior.

According to the petition, Smith was initially treated at SLWH on May 20,

2023, complaining of a headache, high blood pressure, and numbness and tingling

in the right side of her body. Dr. Luu evaluated Smith at 8:13 p.m., and Dr. Luu

noted that Smith had a sensory deficit to her right face, right arm, and right leg. Dr.

1
Defendants Katherine Luu, MD, Katherine Luu, MD, PLLC, and Steven
Ellis, DO are not parties to this appeal. We only discuss those parties, Smith’s claims
against those parties, and pleadings as to those parties as necessary to provide
background and to address SLWH’s issue on appeal.
2
Defendant SLWH answered the suit acknowledging that it had been
incorrectly named in the suit as “St. Luke’s Community Health Services, St. Luke’s
Health System Corporation, and St. Luke’s The Woodlands Hospital[;]” therefore,
we refer to the defendant hospital as SLWH when discussing the allegations in the
petition.
2
Luu assigned Smith a score of “one” on the National Institutes of Health Stroke Scale

(“NIHSS”) and “ordered a CT brain, CT angiogram (CTA) brain, and CTA carotid,

noting the indication for these studies as hypertensive emergency and right-sided

numbness.” The petition states that Dr. Luu ordered hydralazine 10mg IV for

Smith’s hypertension, which was administered at 8:34 p.m., and the CT scans were

completed at 9:48 p.m. According to the petition, at 11:01 p.m., Dr. James Reese

reported that the CT studies reflected “no acute intracranial abnormality or large

vessel occlusion.” Dr. Luu reassessed Smith at 11:47 p.m., documenting that Smith

continued to have right-sided numbness, but that it had improved since Smith’s

arrival at the hospital. Dr. Luu diagnosed Smith with hypertensive emergency and

right-sided numbness and ordered her to be discharged. In her discharge instructions,

Dr. Luu advised Smith that her CT scans did not show evidence of a stroke and that

her symptoms were likely related to high blood pressure. Smith left the hospital’s

emergency department at 11:45 p.m.

The petition states that on May 21, 2023, at 12:12 p.m., Smith returned to the

SLWH emergency department, and Smith was examined by Dr. Steven Ellis. Dr.

Ellis noted that Smith reported that at 4:00 a.m. she started having slurred speech,

right-sided weakness, and right facial droop. Dr. Ellis noted that Smith had right-

sided facial droop, right arm and leg weakness, and slurred speech, and he assigned

her a score of “five” on the NIHSS. Dr. Ellis noted that he reviewed Smith’s CT

3
scans from May 20th, and Smith was admitted to the hospital with a diagnosis of

facial droop, slurring speech, right arm weakness, and right leg weakness.

The petition states that later Dr. Lucy Buencamino evaluated Smith and noted

that Smith was unable to have an MRI secondary to neck hardware and documented

a plan to consult neurology on the morning of May 22nd if Smith’s symptoms

persisted. At approximately 11:50 p.m. on May 21st, Smith and her family signed

Smith out of SLWH against medical advice from the emergency department noting

on the AMA form that “care here is less than standard[.]”

Smith presented to Houston Methodist Hospital at 12:25 a.m. on May 22nd

and was examined by Dr. Aric Bakshy at 12:52 a.m. According to the petition, Dr.

Bakshy noted that Smith “exhibited right arm and leg weakness, right arm numbness,

dysarthric speech, and right-sided facial 3 numbness and weakness[,]” and that her

symptoms were consistent with a stroke. The stroke team was contacted at 1:05 a.m.

and, as part of her stroke evaluation, Smith underwent a “CT head [and] CTA

head/neck[.]” The testing indicated Smith suffered “a stroke involving the left

thalamocapsular region and a severe stenosis of the P2 segment of the left posterior

cerebral artery (PCA).” The petition states that the providers at Houston Methodist

concluded that Smith was not a candidate for thrombolytic therapies because her

symptoms were “outside the 4.5 hour window.” Smith was hospitalized until May

28, 2023, when she was discharged to TIRR Memorial Hermann inpatient rehab.

4
The petition asserts that Smith still suffers from symptoms from her stroke which

impede her personal and work life.

Smith’s petition alleges that Dr. Luu’s and Dr. Ellis’s treatment of Smith fell

below the standard of care and that they breached the standard of care “by failing to

follow the necessary protocols required for any patient exhibiting potential stroke

symptoms.” The petition also alleges that SLWH is liable for Dr. Luu’s and Dr.

Ellis’s actions to the extent SLWH was an employer or was in control of “any of the

systems by which these doctors made their decisions for Ms. Smith,” and that

Katherine Luu, MD, PLLC, is liable to Smith to the extent that Dr. Luu was operating

as an agent or employee of Katherine Luu, MD, PLLC. Smith’s petition asserts that

the acts and omissions of the defendants proximately caused Smith’s injuries.

Specifically as to Dr. Luu, Smith alleged that Dr. Luu breached the standard

of care by:

• [f]ailing to initiate stroke protocol[;]
• [f]ailing to consult a neurologist and/or stroke team when Ms. Smith
presented complaining of stroke symptoms[;]
• [f]ailing to ensure the CT of the head and CTA brain/carotid was
ready timely in compliance with acute stroke protocol by ordering
the studies for indication of hypertensive emergency and right sided
numbness which resulted in their completion 1 hour and 45 minutes
later and their interpretation 2 hours and 58 minutes after Ms. Smith
arrived to the emergency room[;]
• [f]ailing to offer or recommend thrombolytics to Ms. Smith, who
was an appropriate candidate[;and]
• [f]ailing to diagnose Ms. Smith with an acute stroke and admitting
her to the hospital.

5
As to Dr. Ellis, in the petition Smith alleged that Dr. Ellis breached the

standard of care by:

• [f]ailing to diagnose Ms. Smith with a stroke[;]
• [f]ailing to obtain a repeat CT when he found Ms. Smith’s NIHSS
score increased[;and]
• [f]ailing to admit Ms. Smith under a stroke protocol, thereby not
ensuring she was evaluated by neurology and instead had her
admitted under hospitalist service.

Additionally, Smith alleged that SLWH had the right to control “the means

and details” of doctors with whom it contracts, like Dr. Luu and Dr. Ellis, to provide

emergency medicine at its facility, and that it was negligent in failing to ensure that

Dr. Luu and Dr. Ellis were sufficiently following the appropriate standard of care.

According to Smith, at the time of their improper care of Smith, Dr. Luu and Dr.

Ellis were acting within the course and scope of employment and as agents of

SLWH.

Smith contends that the defendants were grossly negligent in treating Smith

by failing to follow the stroke protocol for a comprehensive stroke center. In the

petition, Smith further alleges that Smith presented to SLWH with “symptoms

indicative of a stroke and was a candidate for thrombolytics” but Dr. Luu and Dr.

Ellis failed to formally diagnose Smith with a stroke, initiate a stroke protocol, and

timely consult neurology. According to Smith, the defendants “robb[ed] her of a

chance at the best possible outcome when she presented to the emergency

department with alarming and then worsening symptoms.”
6
Smith sought damages for physical pain and suffering, mental pain and

suffering, loss of consortium, physical impairment, physical disfigurement,

inconvenience, loss of enjoyment of life, reasonable and necessary past and future

medical bills, lost wages and lost earning capacity. Attached to the petition is an

expert report from Dr. Brian Pisula along with his curriculum vitae.

SLWH’s Answer and Objections to Dr. Pisula’s Initial and First Amended Expert
Report

SLWH filed an Answer, stating it was incorrectly named as “St. Luke’s

Community Health Services, St. Luke’s Health System Corporation, and St. Luke’s

The Woodlands Hospital[,]” and generally denying Smith’s allegations and asserting

affirmative defenses. SLWH also filed Objections to Plaintiff’s Chapter 74 Report

of Brian Pisula, MD. In response, Smith filed the First Amended Chapter 74 Report

of Brian Pisula, MD. SLWH filed Objections to Plaintiff’s First Amended Chapter

74 Report of Brian Pisula, MD and Motion to Dismiss. Smith filed a response to the

objections and motion to dismiss, and SLWH filed a reply to Smith’s response.

After a hearing on SLWH’s Objections to Plaintiff’s First Amended Chapter

74 Report of Brian Pisula, MD and Motion to Dismiss, on November 14, 2024, the

trial court and the parties signed an Agreed Order. The Agreed Order states that the

trial court sustained SLWH’s objections in part because Pisula’s first amended report

did not comply with section 74.351 because his opinion as to causation is speculative

and conclusory. The court granted Smith a thirty-day extension to cure the defects.
7
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c). The trial court denied SLWH’s

Motion to Dismiss.

Dr. Pisula’s Second Amended Chapter 74 Report3

In the Second Amended Chapter 74 Report of Dr. Pisula, a board-certified

emergency doctor, Dr. Pisula described his qualifications for rendering his expert

opinions in this case, described the factual and medical background in the case, and

offered the following opinions and conclusions:

Opinions

The standard of care for emergency physicians in initially evaluating
patients with stroke symptoms is to promptly determine the patient’s
“last known well” time and perform a comprehensive neurological
examination. If the examination is consistent with a stroke and
symptom onset is within 4.5 hours of presentation to the emergency
department, a “code stroke” protocol must be activated. Code stroke
protocols consist of rapid consultation of a neurologist and/or stroke
team, rapidly obtaining a CT without contrast of the head with
expedited interpretation of the CT results, and administration of a
thrombolytic medication if the patient is determined to be a candidate.

The American Heart Associat[ion] St[r]oke Target guidelines as well
as the National Institute of Neurological Disorders and Stroke
recommend the following targets for [a] patient presenting with stroke
symptoms presenting within 4.5 hours of symptom onset: ≤ 10 minutes
to initial physician evaluation, ≤ 15 minutes to stroke team/neurology
consultation, ≤ 25 minutes to head CT, ≤ 45 minutes to interpretation
of neurological imaging, ≤ 60 minutes to initiation of thrombolytic
therapy.

3
The trial court ultimately dismissed Smith’s claims against Steven Ellis, DO,
without prejudice, and therefore Smith’s vicarious liability claims against SLWH
cannot be based on Smith’s allegations against Dr. Ellis, so we omit any further
analysis of Dr. Pisula’s second amended report relating to Dr. Ellis.
8
Ms. Smith presented to [SLWH] on May 20, 2023 at 8:03 pm. Dr. Luu
evaluated Ms. Smith at 8:13pm and documented that Ms. Smith’s
symptoms of right-sided numbness had started one hour prior to arrival.
Dr. Luu performed a neurological examination, documenting that Ms.
Smith had objective numbness in her right arm, leg, and face. Despite
documenting that Ms. Smith’s symptoms had started within one hour
of presentation to the E[mergency] D[epartment] and that she had
objective sensory loss to the right-side of her body, Dr. Luu did not
activate a code stroke protocol. Dr. Luu did not consult a neurologist
and/or a stroke team to evaluate Ms. Smith. While Dr. Luu did order a
CT of the head as well as CTA brain/carotid, she ordered these studies
for the indication of hypertensive emergency and right-sided numbness,
not as part of an acute stroke protocol. As a result, these studies were
not completed until 9:48 pm, 1 hour and 45 minutes after Ms. Smith’s
presentation to the ED, and were not interpreted until 11:01pm, 2 hours
and 58 minutes after Ms. Smith’s arrival to the ED. Dr. Luu’s failure to
order Ms. Smith’s CT scans as acute stroke protocols to ensure timely
completion and interpretation was a breach of the standard of care.
Additionally, Dr. Luu’s failure to promptly consult a neurologist and/or
stroke team was a breach of the standard of care.

Dr. Luu ultimately discharged Ms. Smith from the ED at 11:45pm with
a diagnosis of hypertensive emergency and right-sided numbness, not
an acute stroke. While Dr. Luu noted that she offered admission to Ms.
Smith for blood pressure monitoring and neurological checks, she never
offered or recommended administration of thrombolytics. Ms. Smith
was an appropriate candidate for thrombolytic therapy. She presented
within 4.5 hours of symptom onset, had a measurable neurological
deficit as evidence[d] by her score of 1 on Dr. Luu’s NIHSS, her CT
scan did not show hemorrhage or evidence of irreversible injury, and
although her initial blood pressure was significantly elevated at 223/98,
it reduced briskly to 162/64 by 9:00pm after receiving a dose of
hydralazine 10mg IV. Dr. Luu breached the standard of care by failing
to diagnose Ms. Smith with an acute stroke, failing to offer
thrombolytic therapy, and failing to admit Ms. Smith to the hospital.

Additionally, Dr. Luu advised Ms. Smith in her discharge papers that
her symptoms were likely related to elevated blood pressure. Notably,
Ms. Smith’s blood pressure had significantly lowered during her time
in the ED and was down to 153/96 at 10:30 pm. However, despite this
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reduction in blood pressure, Dr. Luu documented on reassessment that
Ms. Smith still had, albeit improved, right-sided numbness. The
continued presence of right-sided numbness despite a substantial
reduction in Ms. Smith’s blood pressure was exclusionary of her
symptoms being definitely related to her blood pressure. Moreover, if
Ms. Smith had actually been suffering from a hypertensive emergency
with associated neurological deficits, the appropriate management
would have been for her to be admitted to an ICU setting for blood
pressure management, repeated neurological checks, neurology
consultation, and MRI imaging of the brain. Dr. Luu breached the
standard of care by inappropriately reassuring Ms. Smith that her
symptoms were related to hypertension rather than an acute stroke.

Dr. Luu also advised Ms. Smith that her CT scans did not show[] signs
of a stroke. However CT imaging in the setting of [] acute stroke
symptoms is not utilized to diagnose or exclude a stroke. Rather, the
initial head CT is used to screen for alter[n]ative causes of the patient’s
symptoms and for exclusion criteria for thrombolytic therapy. Dr. Luu
breached the standard of care by inappropriately relying on a normal
CT of the head to exclude acute stroke and inappropriately reassuring
Ms. Smith that a negative CT of the head could be utilized to exclude
acute stroke.

....

[SLWH] is a facility equipped to treat stroke patients. Hospitals that
hold themselves out to be stroke centers must have a stroke protocol in
place to ensure that the standard of care is met for patients presenting
with acute stroke. The hospital staff must also have the appropriate
training, information, and resources to ensure that the protocol is
followed. [SLWH] either failed to have an appropriate stroke protocol
in place, or it was inadequate in that it failed to properly ensure the
appropriate recognition and treatment of Ms. Smith’s stroke.

The breaches in the standard of care enumerated above caused a delay
in diagnosis and treatment of Ms. Smith’s stroke. By failing to ensure
that a code stroke protocol was activated, Ms. Smith did not undergo a
CT head until 1 hour and 45 minutes after arrival and it was not
interpreted until almost 3 hours after her arrival. The standard of care
dictates that a head CT should be completed within 25 minutes and
10
interpreted by radiology within 45 minutes of arrival to the Emergency
Department in a patient presenting with stroke symptoms. Rapidly
obtaining the CT allows clinicians to determine if a patient has any
exclusion criteria to treatment with thrombolytic therapy which, if the
patient is eligible, must be administered within 4.5 hours of the patient’s
“last known well” time. In this case, due to the failure of the providers
to follow the stroke protocol timeline, Ms. Smith lost her opportunity
to be given thrombolytic therapy during the time period that was
appropriate. Ms. Smith presented with acute stroke symptoms with a
last known normal of one hour prior to ED presentation. Rapid CT head
imaging should have obtained within 25 minutes to rule-out exclusion
criteria for thrombolytic therapy. Additionally, neurology should have
been emergently consulted to evaluate Ms. Smith for treatment with
thrombolytic therapy. Dr. Luu failed to ensure that the CT of the head
was obtained and interpreted in the appropriate timeframe and failed
[to] ensure that Ms. Smith was evaluated for treatment with
thrombolytics. These breaches caused Ms. Smith to lose the
opportunity to [be] treated with thrombolytics in a timely fashion. Had
Dr. Luu followed the standard of care for patients presenting to the
emergency department with acute stroke symptoms, Ms. Smith would
have likely received thrombolytic therapy and had an improved
neurological outcome.

. . . The failure to accurately diagnose Ms. Smith with an acute stroke
and activate a stroke protocol also resulted in a delay in neurology
consultation and initiation of standard post-stroke care including
aspirin, blood pressure monitoring and treatment, and risk factor
modification.

The Houston Methodist Hospital records show that the stroke team was
activated rapidly upon Ms. Smith’s presentation to the ED. This
allowed the providers to obtain lab work, imaging, and prompt
neurology consultation. Although Ms. Smith was no longer a candidate
for thrombolytic therapy, a code stroke protocol was properly initiated
based on her focal neurological deficits.

Conclusion

It is my opinion that Dr. Luu breached the standard of care in her
evaluation and management of Ms. Smith for her stroke symptoms. Dr.
11
Luu’s failure to properly diagnose Ms. Smith’s stroke and initiate a
code stroke protocol resulted in Ms. Smith losing her best chance at
preventing progression of her stroke.

. . . Ms. Smith did not receive an accurate diagnosis and neurology
consult until two days after symptom onset, when she presented to the
Houston Methodist emergency department, wherein appropriate
symptom management began by initiating a code stroke protocol.

These breaches were the proximate cause of the delay in diagnosis of
Ms. Smith’s stroke. Ms. Smith’s damages could have been prevented
and/or mitigated had she been timely diagnosed with an acute stroke
and a code stroke protocol initiated promptly.

I hold these opinions to a reasonable degree of medical probability. I
also reserve the right to amend them should additional information be
provided to me.

SLWH’s Objections to Plaintiff’s Second Amended Report and Motion to Dismiss

SLWH filed Objections to Plaintiff’s Second Amended Chapter 74 Report of

Brian Pisula, MD and Motion to Dismiss. SLWH objected to Dr. Pisula’s second

amended expert report, arguing that the report remains speculative and conclusory,

fails to sufficiently explain the causal relationship between Dr. Luu’s alleged

negligent actions and Smith’s injuries, remains silent on any injuries caused by

SLWH’s alleged negligence, and is not a good faith effort to comply with the

requirements of section 74.351.4 According to SLWH, Dr. Pisula fails to identify the

4
SLWH also argued “out of an abundance of caution[]” that, although Smith
brought vicarious liability claims against SLWH, Dr. Pisula’s second amended
report fails to adequately address the standard of care and breach of the standard of
care as to SLWH. Because on appeal SLWH only challenges the report’s sufficiency
on causation for purposes of Smith’s vicarious liability claims against SLWH, we
12
injuries Smith suffered from the alleged stroke and how the alleged delay in

diagnosis and treatment caused Smith’s injuries. SLWH contends that the report is

silent on the actual neurological deficits Smith allegedly suffered from the alleged

breaches of the standard of care and does not identify what thrombolytic therapy is,

how it works to treat a stroke, or how it would have improved Smith’s outcome.

Specifically, SLWH argues that the report does not identify Smith’s current

neurological deficits or the expected improvements she would have benefited from

with thrombolytic therapy. SLWH also moved to dismiss Smith’s healthcare liability

claim as to SLWH with prejudice on the basis that Dr. Pisula’s second amended

expert report is insufficient to fulfill the requirements of Chapter 74 as to SLWH.

Defendants Katherine Luu, MD, Katherine Luu, MD, PLLC, and Steven Ellis,

DO, also filed objections to Dr. Pisula’s second amended expert report. Because they

are not parties to this appeal, we do not discuss herein their objections or Smith’s

responses to those objections.

Smith’s Response to SLWH’s Objections to Second Amended Report and Second
Motion to Dismiss

In her response in the trial court, Smith alleges that the expert report is not

required to marshal all the evidence as if it were litigating the merits, Dr. Pisula’s

second amended report details how the breaches of the standard of care caused and

do not include a discussion of SLWH’s arguments about its standard of care and
alleged breach of that standard.
13
contributed to Smith’s injury, and that the report is a good faith effort to adequately

explain that the case has merit. According to Smith, Dr. Pisula describes in the report

Smith’s symptoms (numbness, slurring of speech, right facial droop) in order to

explain how those symptoms should have triggered a code stroke protocol but they

are also key to understanding how the failure to follow the standard of care prevented

Smith’s chance at stopping the eventual stroke and/or the progression of those

symptoms, the timely use of thrombolytic therapy is to try and eliminate a clot before

it can lead to a major stroke, and Smith was a candidate for that therapy. Smith

argues that the report identifies her injuries suffered by the alleged stroke by stating

that “These breaches were the proximate cause of the delay in diagnosis of Ms.

Smith’s stroke. Ms. Smith’s damages could have been prevented and/or mitigated

had she been timely diagnosed with an acute stroke and a code stroke protocol

initiated promptly.” Smith contends that, in other words, the stroke itself is the

damage suffered by Smith due to the breach of the standard of care, and that the

report explains that Pisula’s report explains that code stroke protocol should occur

as soon as possible and does not necessitate that the stroke have happened already.

Smith explains that Pisula’s “thorough explanation of the code stroke protocol shows

how imperative it is to determine whether a patient is a candidate for thrombolytic

therapy before they have a stroke if they present timely, as Ms. Smith did.” Smith

also argues that Chapter 74 requires opinions only as to liability and causation and

14
does not require an explanation of all the harm that flows from a plaintiff’s injury.

As for SLWH’s argument that Dr. Pisula’s report has not identified a direct liability

theory as to SLWH, Smith argues that this argument was addressed in her responsive

motion to SLWH’s first Motion to Dismiss and at the subsequent hearing, that the

Texas Supreme Court “has regularly addressed this issue[,]” and that so long as her

expert report complies with Chapter 74’s expert report requirements for a viable

liability theory, the report is sufficient as to Smith’s claims for vicarious liability as

to SLWH.

SLWH’s Reply to Smith’s Response

In its Reply to Smith’s Response, SLWH argues that Smith has

mischaracterized Dr. Pisula’s report by claiming that Dr. Pisula’s explanation of the

stroke protocol demonstrates that it is imperative to timely determine whether a

patient is a candidate for thrombolytic therapy. According to SLWH, Dr. Pisula’s

report does not state that the defendants’ actions caused Smith to have a stroke, but

instead states that Pisula believes a patient must be diagnosed with or have a stroke

before the stroke protocol can be activated and thrombolytic therapy administered,

and the breaches in the standard of care set out in the report caused a delay in the

diagnosis and treatment of Smith’s stroke and that the claim is essentially that she

lost her opportunity to be given thrombolytic therapy during an appropriate time.

SLWH argues that although Dr. Pisula is not required to marshal all proof or detail

15
the harm that flowed from Smith’s alleged injury, he has failed to identify any injury

beyond the loss of chance of an improved outcome by the alleged failure to timely

diagnose and treat the alleged stroke with thrombolytic therapy. According to

SLWH, Dr. Pisula generally claims that Smith’s damages could have been mitigated

if she were timely diagnosed, and if Dr. Luu had ordered and followed the stroke

protocol, Smith “likely” would have received thrombolytic therapy and would have

had an improved neurological outcome. According to SLWH, these statements

amount to nothing more than mere conjecture, and Dr. Pisula’s opinion on causation

is wholly deficient because he fails to identify any injury suffered by Smith that was

caused by Dr. Luu or SLWH. SLWH also argues that, as to Dr. Pisula’s opinion that

the alleged breaches of standard of care caused Smith to lose the opportunity to

receive thrombolytic therapy, Texas does not recognize a common law cause of

action for the “loss of chance” in medical malpractice claims. SLWH contends that

recovery for a loss of chance requires proof that at the time of the alleged negligent

action there was less than a 50% chance the claimed injuries would have occurred

without the negligence, and Dr. Pisula’s report does not show that Smith had a less

than 50% chance of an injury without the alleged delay in diagnosing an acute stroke

and initiation of thrombolytic therapy. SLWH further argues that Pisula, in stating

that Dr. Luu’s failure to properly diagnose a stroke resulted in Smith losing her

“best” chance at preventing the progression of a stroke with the use of thrombolytic

16
therapy, does not define what is meant by “best” and does not address the percentage

of patients who benefit from thrombolytic therapy or address the risks of the therapy.

Trial Court’s Order

After a hearing on January 17, 2025, the trial court signed an Order on

Motions to Dismiss wherein the trial court dismissed any and all direct liability

claims asserted by Smith against SLWH and stated that Smith’s vicarious liability

claims against SLWH “remain pending[.]” The Order on Motions to Dismiss also

dismissed any or all of Smith’s claims against Dr. Ellis, but denied the Motion to

Dismiss filed by Katherine Luu, MD and Katherine Luu, MD, PLLC. SLWH filed a

notice of interlocutory appeal. Dr. Luu did not file a notice of appeal.

Issue on Appeal

In a single issue on appeal, SLWH argues the trial court abused its discretion

in failing to dismiss Smith’s vicarious liability claims against SLWH. SLWH

contends that Dr. Pisula’s Second Amended Expert Report inadequately addresses

the cause of Smith’s injuries. Specifically, SLWH argues that for Smith to maintain

a vicarious liability claim against SLWH, Dr. Pisula’s report must adequately

address causation against Dr. Luu because the trial court dismissed Smith’s claims

against Dr. Ellis. SLWH also asserts that Dr. Luu was not an employee of SLWH at

the time of Smith’s care and SLWH did not train, educate, instruct, supervise or

control Dr. Luu’s medical decisions at the time of Smith’s care. According to

17
SLWH, Dr. Pisula’s causation opinion as to Dr. Luu is speculative and conclusory

and contains analytical gaps, making the report deficient as to Smith’s vicarious

liability claims against SLWH. SLWH also argues that under Kramer v. Lewisville

Memorial Hospital,5 Texas does not recognize a common law cause of action for

loss of chance in a healthcare liability claim and that, like the expert report in Varkey

v. Melhem,6 Dr. Pisula’s expert report does not show that Smith had less than a 50%

chance of suffering an injury without negligence. SLWH does not challenge Dr.

Pisula’s qualifications or the standard of care or the alleged breach of that standard.

In response, Smith maintains that Texas law does not require a separate report

when vicarious liability is at issue and that expert doctors are not required to opine

regarding business relationships at this preliminary stage. Smith asserts that she has

not pled a loss of chance theory, and this case is distinguishable from Varkey, the

case that SLWH relies on in arguing otherwise. According to Smith, Dr. Pisula’s

report explains the conduct of Dr. Luu which is being criticized and why Dr. Luu’s

inaction was the cause of Smith’s damage, and the report includes a thorough

breakdown of how Dr. Luu breached the standard of care and details the escalation

of Smith’s symptoms after being seen by Dr. Luu. Smith argues that she has shown

she has a meritorious claim, she complied with Chapter 74’s expert report

5
858 S.W.2d 397, 400 (Tex. 1993).
6
No. 14-20-00186-CV, 2022 Tex. App. LEXIS 5665 (Tex. App.—Houston
[14th Dist.] Aug. 9, 2022, no pet.) (mem. op.).
18
requirements, and that this is not the appropriate time for SLWH’s arguments that

are defenses beyond the scope of the initial expert report stage.

Standard of Review

In health care liability cases, we review a trial court’s ruling on a motion to

dismiss based on the adequacy of an expert report for an abuse of discretion. See

Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam);

Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam);

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.

2001). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles.” Bowie Mem’l Hosp. v.

Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial court’s ruling does not

constitute an abuse of discretion simply because the appellate court would have ruled

differently under the circumstances. See id. A trial court also abuses its discretion if

it fails to analyze or apply the law correctly. See In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135 (Tex. 2004) (citing Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992)).

In reviewing a report’s sufficiency under this standard, “we consider only the

information contained within the four corners of the report.” Abshire, 563 S.W.3d at

223 (citing Palacios, 46 S.W.3d at 878). In determining whether the report contains

the requisite information, we view the entirety of the report rather than isolating

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specific portions or sections. See Baty v. Futrell, 543 S.W.3d 689, 694 (Tex. 2018);

Van Ness, 461 S.W.3d at 144.

Expert Report Under Chapter 74

Chapter 74 of the Civil Practice and Remedies Code, also known as the Texas

Medical Liability Act (“the Act”), requires health care liability claimants to serve an

expert report upon each defendant not later than 120 days after that defendant’s

answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The purpose of the

expert report requirement is to weed out frivolous malpractice claims in the early

stages of litigation, not to dispose of potentially meritorious claims. Abshire, 563

S.W.3d at 223 (citing Palacios, 46 S.W.3d at 877); see also Loaisiga v. Cerda, 379

S.W.3d 248, 258 (Tex. 2012) (“[Expert report] requirements are meant to identify

frivolous claims and reduce the expense and time to dispose of any that are filed.”)

In accordance with that purpose, the Act provides a mechanism for dismissal of the

claimant’s suit in the event of an untimely or deficient report. Tex. Civ. Prac. &

Rem. Code Ann. § 74.351(b).

An expert report is sufficient under the Act if it “provides a fair summary of

the expert’s opinions . . . regarding applicable standards of care, the manner in which

the care [that was] rendered . . . failed to meet the standards, and the causal

relationship between that failure and the injury[.]” Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6); see Jelinek v. Casas, 328 S.W.3d 526, 538-40 (Tex. 2010);

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Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Palacios, 46 S.W.3d at 875,

879. The trial court need only find that the report constitutes an “objective good faith

effort” to comply with the statutory requirements. Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l); see also Abshire, 563 S.W.3d at 223; Palacios, 46 S.W.3d at 878. The

Texas Supreme Court has held that an expert report demonstrates a “good faith

effort” when it “(1) inform[s] the defendant of the specific conduct called into

question and (2) provid[es] a basis for the trial court to conclude the claims have

merit.” Baty, 543 S.W.3d at 693-94. A report “‘need not marshal all the claimant’s

proof,’ but ‘a report that merely states the expert’s conclusions about the standard of

care, breach, and causation’” is insufficient. Abshire, 563 S.W.3d at 223 (quoting

Palacios, 46 S.W.3d at 878-79). In determining the adequacy of an expert report, a

court reviews the pleadings to determine the claims alleged and whether the report

addresses those claims. See Christus Health Se. Tex. v. Broussard, 306 S.W.3d 934,

938 (Tex. App.—Beaumont 2010, no pet.) (citing Windsor v. Maxwell, 121 S.W.3d

42, 51 (Tex. App.—Fort Worth 2003, pet. denied)). The report must “explain, to a

reasonable degree, how and why the breach caused the injury based on the facts

presented.” Jelinek, 328 S.W.3d at 539-40.

Analysis

SLWH’s primary challenge to the second amended report pertains to

causation. SLWH argues that Dr. Pisula’s report is inadequate as to causation

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because his opinion as to Dr. Luu is speculative and conclusory and contains

analytical gaps, making the report deficient as to Smith’s vicarious liability claims

against SLWH. Specifically, SLWH contends that Pisula completely fails to opine

that it was “more likely than not” that if Smith would have received thrombolytic

therapy she would not have sustained injuries from her stroke or that she would have

had an improved neurological outcome with initiation of thrombolytic therapy by

Dr. Luu, and that speculative phrases such as “los[s] [of] opportunity” and “would

have likely” as used in Pisula’s report are insufficient to meet the requirements of

Chapter 74. SLWH also argues that Dr. Pisula’s report does not link Dr. Luu’s

alleged failure to initiate a code stroke protocol to Smith’s ultimate harm, that the

report concludes Smith was an appropriate candidate for thrombolytic medication

without identifying the criteria that makes a patient a candidate; and that the report

fails to explain thrombolytic therapy and how it would have improved Smith’s

neurological outcome.

The Act requires an expert report to address causation—“how and why” the

alleged negligence caused the injury in question. See Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6); Abshire, 563 S.W.3d at 224 (quoting Jelinek, 328 S.W.3d at

536). A conclusory statement of causation is inadequate, and the expert must explain

the basis of his statements and link conclusions to specific facts. Abshire, 563

S.W.3d at 224; Jelinek, 328 S.W.3d at 539; see also Columbia Valley Healthcare

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Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017) (“[W]ithout factual

explanations, the reports are nothing more than the ipse dixit of the experts, which

. . . are clearly insufficient.”). In satisfying this “how and why” requirement, the

expert need not prove the entire case or account for every known fact, and the report

is sufficient if it makes “‘a good-faith effort to explain, factually, how proximate

cause is going to be proven.’” Abshire, 563 S.W.3d at 224 (quoting Zamarripa, 526

S.W.3d at 460).

Applying the standard outlined above, we cannot say that Dr. Pisula’s

explanation fails to provide a sufficient preliminary link between Dr. Luu’s alleged

breach of the standard of care and Smith’s injuries. See Abshire, 563 S.W.3d at 225.

The report draws a line directly from Dr. Luu’s failure to properly diagnose Smith’s

stroke and her alleged failure to initiate a code stroke protocol (which, among other

things, could result in the administration of thrombolytics to improve neurological

outcome), which Dr. Pisula opines then resulted in Smith no longer being a candidate

for thrombolytic treatment to prevent the progression of her stroke. Id. Dr. Pisula’s

report ties his conclusion to the underlying facts—that Dr. Luu’s failure to properly

diagnose Smith’s stroke and initiate a code stroke protocol proximately caused the

delay in diagnosis of Smith’s stroke, that Smith’s damages could have been

prevented or mitigated had she been timely diagnosed with an acute stroke and a

code stroke protocol initiated promptly, and that she did not receive an accurate

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diagnosis and neurology consult until two days after symptom onset, when she

presented to another hospital’s emergency department and appropriate symptom

management began by initiating a code stroke protocol. See id. at 225-26. Dr. Pisula

explains “to a reasonable degree, how and why the breach caused the injury based

on the facts presented.” See Jelinek, 328 S.W.3d at 539-40. Because Dr. Pisula

explains the “how and why” Dr. Luu’s breach of the standard of care caused Smith’s

injury, his use of terms “los[s] [of] opportunity” and “would have likely” do not

render the report deficient. See, e.g., Monga v. Perez, No. 14-16-00961-CV, 2018

Tex. App. LEXIS 627, at **35-36 (Tex. App.—Houston [14th Dist.] Jan. 23, 2018,

pet. denied) (mem. op.) (concluding that expert report’s use of terms such as “likely

to occur” or “likely would not have occurred” did not amount to speculation and

conjecture making the report deficient but instead was sufficient because the expert

report did not use only words of mere possibility and explained “how and why” the

defendant’s breach of the standard of care caused the plaintiff’s injuries). The expert

report is not required to describe the causal relationship with “magical words[,]” but

it must do more than express a mere possibility. Bowie, 79 S.W.3d at 53. The trial

court could have reasonably rejected SLWH’s position that Dr. Pisula’s opinion on

causation was speculation or conjecture.

As to SLWH’s argument that SLWH cannot be vicariously liable in this case

because Dr. Luu was not an employee of SLWH at the time of Smith’s care and

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SLWH did not train, educate, instruct, supervise or control Dr. Luu’s medical

decision making at the time of Smith’s care, Chapter 74 does not require a plaintiff

to provide an expert report that anticipates and rebuts all possible defensive theories

that ultimately may later be presented at trial or by a dispositive motion for summary

judgment. See Monga, 2018 Tex. App. LEXIS 627, at *29 (citing Fortner v. Hosp.

of the Sw., LLP, 399 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.)). At this

stage of the proceeding, we are not supposed to require a claimant to “present

evidence in the report as if it were actually litigating the merits.” See Palacios, 46

S.W.3d at 879. We cannot say that the trial court abused its discretion in reaching

the conclusion that Dr. Pisula’s second amended report constitutes a good faith effort

to comply with the Act’s requirement to provide a fair summary of his opinions with

respect to the causal relationship between Dr. Luu’s alleged breach and Smith’s

injury, and we cannot say that the amended report failed to inform SLWH of the

specific conduct called into question or that it fails to provide a basis for the trial

court to conclude the claims may have merit. See Abshire, 563 S.W.3d at 226 (citing

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l), (r)(6); Palacios, 46 S.W.3d at 879);

Baty, 543 S.W.3d at 693-94.

We also cannot say the trial court abused its discretion in rejecting SLWH’s

suggestion that Smith’s claim is nothing more than a “loss of chance” claim like the

claim that was rejected in Kramer. See 858 S.W.2d 397, 400 (Tex. 1993); see also

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Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 859-62 (Tex.

2009) (addressing Kramer and explaining that the Texas Supreme Court has rejected

the notion that the lost chance of survival or improved health is a distinct,

compensable injury). This Court addressed a similar argument in Deborah Rose

Eezzuduemhoi, PLLC v. Delli, No. 09-22-00053-CV, 2022 Tex. App. LEXIS 8452,

at **18-19 (Tex. App.—Beaumont Nov. 17, 2022, no pet.) (mem. op.), and noted

the following in concluding that the trial court in its discretion could have rejected

the defendant’s suggestion that the plaintiff’s claims were nothing more than “lost

chance” claims like what was rejected in Kramer:

At this stage of the litigation, the plaintiff is not required to marshal all
evidence, and “the expert need not prove the entire case or account for
every known fact[]” as long as it is a good-faith effort to explain
factually how the plaintiff will prove proximate cause. Abshire, 563
S.W.3d at 224 (citing Zamarripa, 526 S.W.3d at 460).

Accordingly, we overrule Appellant’s issue, and we affirm the trial court’s

order.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on July 31, 2025
Opinion Delivered August 14, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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