                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-08-467-CV


GRANBURY MINOR EMERGENCY                                        APPELLANTS
CLINIC AND ABEL SALAS, M.D.

                                      V.

TEAGAN THIEL                                                       APPELLEE

                                  ------------

         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                  ------------

                                 OPINION

                                  ------------
                              I. INTRODUCTION

     This is an interlocutory appeal challenging (1) the adequacy of an expert

report prepared by William W. Spangler, M.D., FACEP addressing the alleged

negligence of Appellant Abel Salas, M.D. and (2) the trial court’s failure to

award attorney’s fees after dismissing with prejudice Appellee Teagan Thiel’s

claims against Appellant Granbury Minor Emergency Clinic. For the reasons set

forth below, we hold that the trial court did not abuse its discretion by
determining that Dr. Spangler’s report was adequate but did abuse its discretion

by failing to award attorney’s fees to the Clinic; accordingly, we will reverse the

portion of the trial court’s order awarding no attorney’s fees to the Clinic and

remand the issue of attorney’s fees to the trial court.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On August 28, 2006, Thiel sought treatment at the Clinic and was seen

by Dr. Salas.    Thiel complained of abdominal pain and vomiting.         Without

performing a physical examination or diagnostic testing, Dr. Salas diagnosed

Thiel as suffering from food poisoning and sent her home with a prescription for

an antibiotic.

      Thiel’s symptoms continued to worsen, and she went back to the Clinic

on September 6, 2006. At that time, Thiel was still suffering from abdominal

pain, which had localized to her right side. Dr. Salas diagnosed Thiel with a

urinary tract infection and gave her a prescription for an antibiotic.

      When Thiel’s symptoms still did not improve, she went on September 14,

2006 to see her primary care physician who immediately ordered a CT scan to

rule out appendicitis. The CT scan confirmed appendicitis, and Thiel was taken

into surgery later that day. The surgery revealed that Thiel’s appendix had

ruptured and had become gangrenous and that she was suffering from an intra-

abdominal abscess caused by the ruptured appendix. Because the abscess

                                        2
significantly involved Thiel’s colon, she underwent a partial hemicolectomy with

anastomisis.    Following the surgery, Thiel underwent additional surgeries

secondary to the delayed diagnosis of her appendicitis.

      Thiel filed suit and timely served a seven-page, single-spaced expert

report by Dr. Spangler along with his four-page curriculum vitae. Appellants

filed a motion to dismiss with prejudice. Appellants generally denied Thiel’s

allegations and specifically denied that the Clinic is “in any way a legal entity

subject to liability.”     Appellants asserted objections to Dr. Spangler’s

qualifications and to the substance of his report, specifically its purported failure

to address the elements of standard of care, breach, and causation concerning

Thiel’s health care liability claims.

      After a hearing, the trial court sustained the Clinic’s objections to Dr.

Spangler’s report and dismissed with prejudice Thiel’s claims against the Clinic;

the trial court found that the reasonable and necessary attorney’s fees for the

Clinic were $0.      The trial court overruled Dr. Salas’s objections to Dr.

Spangler’s report and denied his motion to dismiss. This appeal followed.

            III. D R. S PANGLER’S R EPORT M EETS C HAPTER 74 C RITERIA

      In Appellants’ first issue, Dr. Salas argues that the trial court abused its

discretion by failing to dismiss Thiel’s health care liability claims against him

because Dr. Spangler was not qualified to offer his opinions and because Dr.

                                         3
Spangler’s report fails to adequately set forth the statutory expert report

elements of standard of care, breach, and causation.

       A.     Standard of Review

       We review a trial court’s denial of a motion to dismiss for an abuse of

discretion.   Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Ctr. for

Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.

App.—Fort Worth 2008, pet. denied); Maris v. Hendricks, 262 S.W.3d 379,

383 (Tex. App.—Fort Worth 2008, pet. denied). 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. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.
1159 (1986).     Merely because a trial court may decide a matter within its

discretion in a different manner than an appellate court would in a similar

circumstance does not demonstrate that an abuse of discretion has occurred.

Id.   But a trial court has no discretion in determining what the law is or in

applying the law to the facts, and thus “a clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion.”

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); Ehrlich

v. Miles, 144 S.W.3d 620, 624 (Tex. App.—Fort Worth 2004, pet. denied).

                                       4
      B.    Statutory Standards for Expert Reports

      A trial court must grant a motion to dismiss a health care liability claim

if it finds, after a hearing, that “the [expert] report [filed by the claimant] does

not represent an objective good faith effort to comply with the definition of an

expert report” in the statute. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l)

(Vernon Supp. 2008).       While the expert report “need not marshal all the

plaintiff’s proof,” Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 878 (Tex. 2001) (construing former art. 4590i, § 13.01), it must

provide a fair summary of the expert’s opinions as to the “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.” Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6).

      To constitute a good faith effort, the report must “discuss the standard

of care, breach, and causation with sufficient specificity to inform the

defendant of the conduct the plaintiff has called into question and to provide

a basis for the trial court to conclude that the claims have merit.” Palacios, 46
lsmith@example.org. A report does not fulfill this requirement if it merely states the

expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.

But the information in the report “does not have to meet the same requirements

                                         5
as the evidence offered in a summary-judgment proceeding lsmith@example.org.” Id. The

claimant’s expert must incorporate enough information into the report 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 the

claims are meritorious.    Id.; see also Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l), (r)(6).

      When reviewing the adequacy of a report, the only information relevant

to the inquiry is the information contained within the four corners of the

document. Palacios, 46 lsmith@example.org. This requirement precludes a court

from filling gaps in a report by drawing inferences or guessing as to what the

expert likely meant or intended. See id. However, section 74.351 does not

prohibit experts, as opposed to courts, from making inferences based on

medical history. Marvin v. Fithian, No. 14-07-00996-CV, 2008 WL 2579824,

at *4 (Tex. App.—Houston [14th Dist.] July 1, 2008, no pet.) (mem. op.); see

also Tex. R. Evid. 703 (providing that an expert may draw inferences from the

facts or data in a particular case); Tex. R. Evid. 705 (providing that expert may

testify in terms of opinions and inferences).




                                       6
      C.    Dr. Spangler is Qualified

      Dr. Salas contends that Dr. Spangler was not qualified to provide opinions

in this case because Dr. Salas is a general family practitioner while Dr. Spangler

is a board-certified emergency room physician.

      The determination of a doctor’s qualifications to provide an expert report

must be made on the basis of the contents of the report and his curriculum

vitae. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). With

respect to a person giving opinion testimony regarding whether a physician

departed from accepted standards of medical care, an expert must (1) be

practicing medicine at the time of the testimony or at the time the claim arose;

(2) have knowledge of accepted standards of medical care for the diagnosis,

care, or treatment of the condition involved in the claim; and (3) be qualified on

the basis of training or experience to offer an expert opinion regarding the

standard of care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A), §

74.401(a) (Vernon 2005). A physician is “qualified on the basis of training or

experience” if the physician is board-certified or has other substantial training

or experience in an area of medical practice relevant to the claim and is actively

practicing medicine in rendering medical care services relevant to the claim. Id.

§ 74.401(c).




                                        7
      An expert is qualified to give opinion testimony about the causal

relationship between the injury claimed and the alleged departure from the

applicable standard of care if he is “otherwise qualified to render opinions on

such causal relationship under the Texas Rules of Evidence.”               See id.

§ 74.351(r)(5)(C), § 74.403(a) (Vernon 2005). The Texas Rules of Evidence

provide that “[i]f scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education may testify thereto in the form of an opinion or otherwise.” Tex. R.

Evid. 702; see also Roberts v. Williamson, 111 S.W.3d 113, 121–22 (Tex.

2003) (recognizing that while medical license does not automatically qualify

holder to testify as expert on every medical question, test is not whether expert

practices in a particular field of medicine but rather whether offering party has

established that expert has knowledge, skill, experience, training, or education

regarding specific issue before court that would qualify expert to give opinion

on particular subject, and holding that based on qualifications and experience,

pediatrician was qualified to opine on cause and effect of neurological injuries).

      We review a trial court’s determination that an expert is qualified under

an abuse of discretion standard. Benish v. Grottie, 281 S.W.3d 184, 198–99

(Tex. App.—Fort Worth 2009, pet. denied); Mem’l Hermann Healthcare Sys. v.

                                         8
Burrell, 230 S.W.3d 755, 757 (Tex. App.—Houston [14th Dist.] 2007, no pet.)

(citing Broders v. Heise, 924 S.W.2d 148, 151–52 (Tex. 1996)).

      Concerning his qualifications, Dr. Spangler’s report states, in part:

            I am an emergency medicine physician currently practicing in
      Katy, Texas at Christus St. Catherine’s Hospital. I have been
      licensed to practice medicine in the State of Texas since 1992.[1]
      I am Board Certified by the American Board of Emergency Medicine
      and am an instructor in Advanced Cardiac Life Support and
      Advanced Trauma Life Support. My attached curriculum vitae is
      incorporated herein as part of my report.

             I am currently, and was at the time Dr. Salas treated Teagan
      Thiel, practicing medicine in an area relevant to this case.
      Throughout my career, I have worked as an emergency physician
      and have often been required to evaluate and diagnose a patient
      suffering from abdominal pain and acute appendicitis. I am well
      familiar with the standard of care required to diagnose appendicitis.
      By virtue of my education, training, experience and board
      certification in emergency medicine, I am familiar with and have
      knowledge of the accepted requisite standards of care for the
      diagnosis and treatment in question in this case. I am thus
      qualified to offer expert opinions in this matter regarding the care
      that Teagan Thiel received from Dr. Abel Salas and the Granbury
      Minor Emergency Clinic.

      Concerning Dr. Salas’s complaint that Dr. Spangler was not qualified to

offer opinions in the case because he is an emergency room physician, not a

general family practitioner like Dr. Salas, we note that Dr. Salas treated Thiel

at a minor emergency clinic; Dr. Salas was not Thiel’s family doctor, and she



      1
       … Dr. Spangler graduated from medical school in 1984 and held licenses
in North Carolina and Louisiana before becoming licensed in Texas.

                                       9
did not seek care from him in that capacity. Moreover, in setting the statutory

qualifications for a chapter 74 expert, the statute does not focus on the

defendant doctor’s area of expertise but on the condition involved in the claim.

See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(2) (requiring expert to have

“knowledge of accepted standards of medical care for the diagnosis, care, or

treatment of the illness, injury, or condition involved in the claim,” not

knowledge of the defendant doctor’s area of speciality) (emphasis added);

§ 74.401(c)(1), (2) (recognizing that experts may be qualified on the basis of

training or experience if they are board certified or are actively practicing “in an

area of medical practice relevant to the claim,” not in the same field as the

defendant doctor) (emphasis added). That is, the applicable “standard of care”

and an expert’s ability to opine on it are dictated by the medical condition

involved in the claim and by the expert’s familiarity and experience with it, not

by the defendant doctor’s area of expertise. See, e.g., McKowen v. Ragston,

263 S.W.3d 157, 162 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(permitting infectious disease physician to opine on standard of care for treating

infection stemming from arteriovenus access graft even though defendant

doctor was cardiologist); Blan v. Ali, 7 S.W.3d 741, 746–47 & n.3 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (holding that board-certified

neurologist was not precluded from giving an opinion that two doctors—a

                                        10
cardiologist and an emergency room physician—breached the standard of care

in an area in which the neurologist has knowledge, skill, training, and

experience and where the subject of the claim (strokes) fell squarely within his

medical expertise). Thus, to the extent Dr. Salas complains in issue one that

Dr. Spangler was not qualified because he is not a general family practice

doctor, we overrule this portion of issue one.

      Dr. Spangler’s report establishes that he was qualified to opine on the

applicable standard of care for the diagnosis, care, or treatment of the illness,

injury, or condition (i.e., appendicitis) involved in Thiel’s claim, as well as Dr.

Salas’s alleged breaches of that standard. Dr. Spangler is licensed to practice

medicine in the State of Texas and was practicing medicine at the time Thiel’s

claim arose.   See Tex. Civ. Prac. & Rem. Code Ann. § 74.401(a)(1).            Dr.

Spangler possesses knowledge of accepted standards of medical care for the

diagnosis, care, or treatment of appendicitis (“[t]hroughout my career, I have

worked as an emergency physician and have often been required to evaluate

and diagnose a patient suffering from abdominal pain and acute appendicitis.

I am well familiar with the standard of care required to diagnose appendicitis”).

See id. §§ 74.351(r)(5)(A), .401(a)(2)–(3); Kelly v. Rendon, 255 S.W.3d 665,

674 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (rejecting argument that

experts were “not qualified to render opinions against [defendant doctor]

                                        11
because their medical specialty is in a different medical discipline from his own”

and holding that “the statute does not require a medical expert be practicing in

the exact same field as the defendant physician, but instead must only be

actively practicing medicine in rendering medical care services relevant to the

claim”). Thus, Dr. Spangler meets the qualification requirements imposed by

chapter 74 to offer opinions on the relevant standard of care and on Dr. Salas’s

breaches of that standard.

      Dr. Spangler’s report also establishes that he was qualified to opine on

the issue of causation because he is qualified to render such an opinion under

the Texas Rules of Evidence.        See Tex. Civ. Prac. & Rem. Code Ann.

§§ 74.351(r)(5)(C), .403(a); Tex. R. Evid. 702. Dr. Spangler is board certified

in emergency medicine and has practiced emergency medicine for over twenty

years. These credentials and this experience, set forth within the four corners

of Dr. Spangler’s report and curriculum vitae, sufficiently establish that he is

qualified to render an opinion on causation in this case. See Tex. Civ. Prac. &

Rem. Code Ann. §§ 74.351(r)(5)(C), .403(a); Tex. R. Evid. 702; see, e.g.,

Mosely v. Mundine, 249 S.W.3d 775, 779–80 (Tex. App.—Dallas 2008, no

pet.) (concluding that expert had the knowledge, skill, experience, training, or

education regarding specific emergency room physician’s scope of practice and




                                       12
holding that expert was therefore qualified to render an opinion on causation

under section 74.351(r)(5)).

     D.    Dr. Spangler’s Report Adequately Sets Forth the Standard of Care
           and the Alleged Standard of Care Violations by Dr. Salas

     Dr. Salas argues that Dr. Spangler’s report fails to establish the standard

of care for a family or general practitioner, such as Dr. Salas, or the

commonality of standards between his own emergency medicine practice and

the family or general medicine practice of Dr. Salas. To the extent that Dr.

Salas argues that Dr. Spangler was not qualified to opine on the standard of

care for the diagnosis and treatment of appendicitis, we have overruled that

contention as set forth above.

     Dr. Salas also argues that Dr. Spangler did not describe what a “thorough

history and physical examination” required or how Dr. Salas failed to conduct

them or identify what diagnostic testing should have been ordered.

     Dr. Spangler’s report contains the following:

           Standards of Care and Deviations from Standards of Care

           In reasonable medical probability, the standards of care
     applicable to evaluation and treatment of, and the injuries sustained
     by Teagan Thiel are as follows:

           1.    The standard of care required Dr. Salas to conduct a
     thorough history and physical examination which would have lead
     him to consider further diagnostic evaluation to determine the
     cause of her abdominal complaints. Dr. Salas’ differential diagnosis

                                      13
should have included ectopic pregnancy, gastritis, appendicitis,
urinary tract infection, pyelonephritis and gastroenteritis. Further
testing and evaluation to determine the true cause of Teagan
Thiel’s abdominal complaints should be based upon a thorough and
appropriate history and physical examination which should have
included Teagan Thiel’s vital signs. Had Dr. Salas conducted a
thorough history and physical examination, as the standard of care
required, his findings would have more than likely led him to
perform additional testing to determine the true cause of her
abdominal complaints.

       2.    Without conducting an appropriate and thorough history
and physical examination on August 28, 2006, Dr. Salas diagnosed
Teagan Thiel as suffering from gastroenteritis, commonly a viral
illness. Although acute gastroenteritis is most commonly caused
by a virus, Dr. Salas prescribed an antibiotic, a medication used to
treat bacterial illnesses which is ineffective on viral illnesses.
Symptoms of gastroenteritis also include diarrhea, a symptom that
Teagan Thiel did not have when she was seen by Dr. Salas on
August 28, 2006. Dr. Salas failed to perform a thorough history
and physical examination which would have lead him to consider
further diagnostic evaluations to determine the cause of Teagan
Thiel’s abdominal complaints. Dr. Salas breached the standard of
care and was negligent when he mis-diagnosed Teagan Thiel with
gastroenteritis without considering and excluding other causes of
Teagan Thiel’s abdominal symptoms.

       3.   On September 6, 2006, when Teagan Thiel again
presented to Dr. Salas at the Granbury Minor Emergency Clinic, she
was complaining of worsening symptoms of abdominal pain that
were localizing to the right side of the abdomen. Abdominal pain
in the right lower quadrant is a symptom commonly caused by
appendicitis. At the time of this second visit, Teagan Thiel had
been taking antibiotics prescribed by Dr. Salas on August 28,
2006, yet he diagnosed her with a urinary tract infection on
September 6, 2006. The antibiotic therapy she had been taking
should have increased his index of suspicion that the cause of her
abdominal complaints was appendicitis rather than the urinary tract
infection.   Put simply, in light of her right sided abdominal

                                14
complaints, Dr. Salas should have considered the cause of Teagan
Thiel’s abdominal complaints as appendicitis until proven otherwise
through an appropriate work-up. In order to make the proper
diagnosis, the standard of care required Dr. Salas’ work-up of
Teagan Thiel’s abdominal pain to include (1) obtaining her vital
signs to determine if there was a fever which is frequently present
with appendicitis; (2) obtaining a complete blood count (CBC)
which is a blood test which would have revealed any elevation in
her white blood cell count which is commonly found in patients
with appendicitis; (3) obtaining a pregnancy test since Teagan Thiel
was of child-bearing age and ectopic pregnancy may mimic the
signs and symptoms of appendicitis; and (4) obtaining an abdominal
and pelvic CT scan, a radiographic test conducted to visualize the
appendix to determine if it is enlarged, distended or thickened,
findings that indicate inflammation.      Dr. Salas breached the
standard of care by failing to obtain an adequate history, perform
an appropriate physical examination and conduct the work-up
necessary to diagnose the cause of Teagan Thiel’s complaints. In
reasonable medical probability, had Dr. Salas conducted the work-
up described above, he would have diagnosed Teagan Thiel with
appendicitis before her appendix ruptured spilling bacteria and
causing the involvement of the colon that necessitated its removal
on September 14, 2006. The CT would have in all likelihood
revealed changes indicative of appendicitis that would have led to
the correct diagnosis. This opinion is based on her symptoms, the
CT findings on September 14, 2006 of appendicitis with extensive
inflammatory changes and the September 14, 2006 operative
findings of a ruptured, gangrenous appendix that had cause
extensive disease to the adjacent colon.

      4.    The standard of care further required Dr. Salas to refer
Teagan Thiel to the hospital emergency department or a surgeon to
treat her appendicitis on September 6, 2006. Having failed to
conduct any meaningful work-up to determine the cause of Teagan
Thiel’s abdominal pain, Dr. Salas mis-diagnosed her appendicitis
and failed to send Teagan Thiel to the hospital or a surgeon. In
reasonable medical probability, Dr. Salas’ failure to appropriately
diagnose Teagan Thiel and refer her to healthcare providers who
could treat her appendicitis resulted in a delayed diagnosis of her

                                15
      appendicitis. During this delayed period the appendix ruptured,
      spilling bacteria into the peritoneal cavity. This bacteria formed an
      abscess and infected the colon and resulted, in reasonable medical
      probability, in the gangrenous colon found during the September
      14, 2006 operation that necessitated the hemicolectomy.

      To summarize, Dr. Spangler set forth at least two specific standard of

care violations by Dr. Salas:     (1) he failed to conduct an appropriate and

thorough history and physical examination of Teagan Thiel on both August 28

and September 6 and failed to perform diagnostic testing on both dates, and (2)

he failed to refer Teagan Thiel to the hospital emergency department or to a

surgeon to treat her appendicitis. After setting forth these standard of care

violations, Dr. Spangler’s report sets forth the conduct that the standard of care

required in the taking of a medical history and physical examination:            (1)

obtaining Thiel’s vital signs to determine if Thiel had a fever, which is frequently

present with appendicitis; (2) obtaining a complete blood count (CBC), which

is a blood test that would have revealed any elevation in her white blood cell

count that is commonly found in patients with appendicitis; (3) obtaining a

pregnancy test since Thiel was of child-bearing age and an ectopic pregnancy

may mimic the signs and symptoms of appendicitis; and (4) obtaining an

abdominal and pelvic CT scan, a radiographic test conducted to visualize the

appendix to determine if it is enlarged, distended, or thickened, which are

findings that indicate inflammation. The report then sets forth the treatment

                                        16
that should have been given to meet the standard of care—including referring

Thiel to a hospital or to a surgeon—and opines that Dr. Salas breached the

standard of care and was negligent when he misdiagnosed Thiel with

gastroenteritis and with a urinary tract infection without considering and

excluding other causes of Thiel’s abdominal symptoms.

      Thus, contrary to Dr. Salas’s argument, Dr. Spangler’s report does

specifically describe what a “thorough history and physical examination”

required, does specifically describe how Dr. Salas failed to conduct a thorough

history and examination, and does specifically identify what diagnostic testing

should have been ordered. For the purposes of a statutory expert report,

statements concerning the standard of care and breach need only identify what

care was expected and was not given with such specificity that inferences need

not be indulged to discern them. See Palacios, 46 S.W.3d at 880; Benish, 281
S.W.3d at 198; Thomas v. Alford, 230 S.W.3d 853, 858 (Tex. App.—Houston

[14th Dist.] 2007, no pet.).        Because Dr. Spangler’s report meets this

requirement, we hold that the trial court did not abuse its discretion by

determining that Dr. Spangler’s report was adequate in this regard. We overrule

this portion of Dr. Salas’s first issue.




                                           17
      E.     Dr. Spangler’s Report Adequately Sets Forth Causation: The
             Alleged Standard of Care Violations by Dr. Salas Proximately
             Caused Thiel’s Hemicolectomy

      Dr. Salas next argues that Dr. Spangler’s report fails to adequately

address the causation element of Thiel’s health care liability claim. Dr. Salas

contends that Dr. Spangler’s causation opinion is inadequate because he failed

to “provid[e] a time frame within which one would reasonably expect an

inflamed appendix to become gangrenous” and “utterly failed to establish when

Thiel actually started suffering from appendicitis, as well as when her appendix

ruptured.”   Dr. Salas argues that Dr. Spangler’s causation opinion stacks

“speculation upon speculation and inference upon inference” concerning when

Thiel began suffering from appendicitis.

      To establish causation, an expert report must provide information linking

the defendant’s purported breach of the standard of care to the plaintiff’s

injury. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); see also Arkoma

Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 390

n.32 (Tex. 2008) (defining “conclusory” as “[e]xpressing a factual inference

without stating the underlying facts on which the inference is based”). An

expert must also explain the basis of his statements to link his conclusions to

the facts. Bowie Mem’l Hosp., 79 lsmith@example.org. To constitute a good faith

effort to establish the causal relationship element, the expert report need not

                                      18
marshal all of the plaintiff’s proof or present evidence as if the plaintiff was

actually litigating the merits. See id. at 52–53; Palacios, 46 lsmith@example.org.

No magic words such as “reasonable medical probability” are required for

compliance. Bowie Mem’l Hosp., 79 lsmith@example.org. The report, however, must

provide enough information within the document to both inform the defendant

of the specific conduct at issue and to allow the trial court to conclude that the

suit has merit. Id. at 52.

      A review of Dr. Spangler’s report refutes each of Dr. Salas’s claims

concerning its causation sufficiency. Dr. Spangler’s report explains,

             Appendicitis should be diagnosed as early as possible to
      achieve the best outcome for the patient. If a patient is diagnosed
      before the appendix perforates, the appendix is typically removed
      via a laparoscopic surgical procedure which allows for more rapid
      healing and minimal scarring. In contrast, if the diagnosis is
      delayed in a patient until after the appendix ruptures, a patient may
      develop complications such as abscess, infection of other organs
      or infection of the peritoneal cavity that requires more extensive
      and difficult surgery. After rupture of the appendix, the longer the
      diagnosis is delayed, the more extensive the spread of infection in
      the abdomen becomes and greater damage to abdominal structures
      occurs.

            In this case, the diagnosis of Teagan Thiel’s appendicitis was
      delayed due to Dr. Salas’ failure to obtain the appropriate clinical
      history or complete an adequate physical examination and perform
      the appropriate diagnostic testing to determine the cause of her
      abdominal complaints. Because of this delay, her appendicitis
      progressed until the appendix became gangrenous and ruptured
      thereby spilling bacteria into her peritoneal cavity. As a result of
      the perforation, Teagan Thiel’s colon became infected and

                                       19
      gangrenous which required that a portion of this twenty-two year
      old’s colon needed to be surgically removed (hemicolectomy).

             It is my opinion, based on reasonable medical probability, as
      explained in detail above, that Dr. Salas failed to timely diagnose
      Teagan Thiel’s appendicitis. It is further my opinion, based on
      reasonable medical probability, that this caused Teagan Thiel’s
      diagnosis of appendicitis to be delayed. Due to this delay, Teagan
      Thiel’s appendix ruptured and her colon became gangrenous. Her
      increasing symptomatology is consistent with appendicitis at
      different stages and supports the conclusion that the delay in the
      diagnosis caused, in reasonable medical probability, the appendix
      to rupture. Initially, appendicitis typically presents with abdominal
      pain located around the umbilical area. As the appendix becomes
      more distended, the overlying parietal peritoneum becomes irritated
      causing the pain to migrate and become localized to the right lower
      quadrant. When Teagan Thiel initially presented to the Granbury
      Minor Emergency Clinic and was seen by Dr. Salas on August 28,
      2006, she was not yet complaining of pain that was localized to
      the right lower quadrant. This is indicative of an early appendicitis.
      The second time Teagan Thiel was seen by Dr. Salas on September
      6, 2006, the pain was localizing to the right side which is indicative
      of an acute appendicitis with irritated parietal peritoneum most
      commonly associated with increased swelling of the appendix
      without perforation.

            Thus, if Dr. Salas had acted within the standard of care and
      timely diagnosed Teagan Thiel, her appendix would not have
      ruptured, her colon would not have become gangrenous and she
      would not have had to endure the extensive surgery she underwent
      on September 14, 2006 that included removal of part of her colon.

      Without restating every sentence in the causation portion of Dr.

Spangler’s report set forth above, a review of the above paragraphs

demonstrates information sufficient enough to inform Dr. Salas of the specific

conduct that Thiel has called into question and how that conduct purportedly

                                       20
injured Thiel, providing a basis for the trial court to conclude that Thiel’s claims

against Dr. Salas have merit.      See, e.g., id. (setting forth when a report is

sufficient on causation). Dr. Spangler links Dr. Salas’s breaches of the standard

of care (“having failed to conduct any meaningful work-up to determine the

cause of Teagan Thiel’s abdominal pain, Dr. Salas mis-diagnosed her

appendicitis and failed to send Teagan Thiel to the hospital or a surgeon”) to

Thiel’s injury (“[i]n reasonable medical probability, Dr. Salas’ failure to

appropriately diagnose Teagan Thiel and refer her to healthcare providers who

could treat her appendicitis resulted in a delayed diagnosis of her appendicitis.

During this delayed period the appendix ruptured, spilling bacteria into the

peritoneal cavity. This bacteria formed an abscess and infected the colon and

resulted, in reasonable medical probability, in the gangrenous colon found

during   the   September     14,    2006     operation   that   necessitated    the

hemicolectomy”).

      Concerning Dr. Salas’s argument that Dr. Spangler failed to “provid[e] a

time frame within which one would reasonably expect an inflamed appendix to

become gangrenous” or “utterly failed to establish when Thiel actually started

suffering from appendicitis, as well as when her appendix ruptured,” Dr. Salas

points us to no case law or statutory provisions that would require Dr. Spangler

to opine in a chapter 74 expert report when Thiel started suffering from

                                        21
appendicitis or when her appendix ruptured. Nonetheless, Dr. Spangler’s report

specifically explains how appendicitis progresses and states that when Dr. Salas

initially saw Thiel, her symptoms (general abdominal pain) were consistent with

early appendicitis; that when he saw her approximately nine days later, her

symptoms (abdominal pain localizing to the right side) were consistent with

acute appendicitis; and that if Dr. Salas had acted within the standard of care

and timely diagnosed Thiel, her appendix would not have ruptured, and she

would not have had to endure the extensive surgery she underwent on

September 14, 2006 that included removal of part of her colon. It is enough

that Dr. Spangler opined that Dr. Salas’s breaches of the standard of care

delayed the diagnosis of Thiel’s appendicitis so that Thiel’s appendix ruptured

after Dr. Salas’s September 6, 2006 examination and caused Thiel’s colon to

become gangrenous. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6);

see also, e.g., Simonson v. Keppard, 225 S.W.3d 868, 875–76 (Tex.

App.—Dallas 2007, no pet.) (causation opinion that failure to timely diagnose

cerebellar infarction or hemorrhage via a CT scan or neurological consult

proximately caused patient’s death was adequate).

      Dr. Salas also claims that Dr. Spangler’s causation opinions are

conclusory.   But, as set forth above, Dr. Spangler’s causation opinions

specifically and extensively set forth all of the facts on which they are

                                      22
based—that is, Thiel’s symptoms on August 28, her continuing and worsening

symptoms on September 6, and her ultimate ruptured appendix and gangrenous

colon. Thus, Dr. Spangler’s causation opinions are not conclusory. See, e.g.,

Arkoma Basin Exploration Co., 294 S.W.3d at 390 n.32; Mosely, 249 S.W.3d

at 780–81 (holding expert’s causation opinion was not mere conjecture

because it was supported with facts); Simonson, 225 S.W.3d at 876 (same).

      For the same reasons that Dr. Spangler’s causation opinions are not

conclusory, they also do not stack inference upon inference as alleged by Dr.

Salas. An inference is a deduction of fact that may be drawn from another

fact. See Black’s Law Dictionary 700 (5th ed. 1979). Direct evidence, on the

other hand, is “evidence which, if believed, proves the fact without inference

or presumption.” Brown v. E. Miss. Elec. Power Ass'n, 989 F.2d 858, 861

(5th Cir. 1993). Dr. Spangler’s causation opinions constitute direct evidence

that Dr. Salas’s breaches of the standard of care caused Thiel’s injuries. Dr.

Spangler expressly explained that

      based on reasonable medical probability, as explained in detail
      above, . . . Dr. Salas failed to timely diagnose Teagan Thiel’s
      appendicitis. It is further my opinion, based on reasonable medical
      probability, that this caused Teagan Thiel’s diagnosis of
      appendicitis to be delayed. Due to this delay, Teagan Thiel’s
      appendix ruptured and her colon became gangrenous.




                                      23
No inference is required.    Dr. Spangler expressly states that Dr. Salas’s

breaches of the standard of care caused Thiel’s injuries. Likewise, Dr. Spangler

expressly opines that Thiel was suffering from appendicitis when she initially

presented to Dr. Salas on August 28 (“early appendicitis”); that when Thiel

presented to Dr. Salas on September 6, she was suffering from acute

appendicitis but her appendix had not yet ruptured (“pain was localizing to the

right side which is indicative of an acute appendicitis . . . with increased

swelling of the appendix without perforation”) (emphasis added); and that, as

a result of Dr. Salas’s failure to timely diagnose Thiel’s appendicitis, her

appendix subsequently ruptured (“if Dr. Salas had acted within the standard of

care and timely diagnosed Teagan Thiel, her appendix would not have

ruptured”).   No inferences are required to support Dr. Spangler’s causation

opinions.

      Viewing the information set forth within the four corners of Dr. Spangler’s

report, we hold that the trial court did not abuse its discretion by determining

that Dr. Spangler’s report provides a fair summary of his expert opinions as to

the “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.”

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

                                      24
878; Walters v. Hudoba, No. 02-08-00196-CV, 2009 WL 161079, at *6 (Tex.

App.—Fort Worth Jan. 22, 2009, no pet.) (mem. op.). Thus, the trial court did

not abuse its discretion by determining that Dr. Spangler’s report constitutes

an objective good faith effort to satisfy the two purposes of section 74.351.

See Palacios, 46 S.W .3d at 879; see also Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(l), (r)(6); CHCA Mainland, L.P. v. Wheeler, No. 09-07-00634-CV,

2008 WL 960798, at *5 (Tex. App.—Beaumont Apr. 10, 2008, no pet.) (mem.

op.) (holding that doctor’s expert report represented a good faith effort to

comply with the definition of an expert report when it expressed opinion that

if not for medical center’s breach of the standard of care, with the symptoms

the patient presented at the emergency room, the patient would have been seen

and evaluated by qualified medical personnel and “would have been spared the

generalized intraperitoneal sepsis that necessitated more extensive surgery and

an extended hospitalization”).     Accordingly, we overrule the remainder of

Appellants’ first issue.

IV. T RIAL C OURT F AILED TO A WARD A TTORNEY’S F EES TO C LINIC

      In Appellants’ second issue, the Clinic argues that the trial court abused

its discretion when it refused to award the Clinic attorney’s fees after

dismissing, with prejudice, the health care liability claims Thiel alleged against

the Clinic.   In the Clinic’s motion to dismiss, it objected to Dr. Spangler’s

                                       25
qualifications and the substance of his opinions, moved for dismissal with

prejudice of the claims Thiel brought against the Clinic, and requested

attorney’s fees. The trial court thereafter signed an order sustaining the Clinic’s

objections, granting the Clinic’s motion to dismiss with prejudice all health care

liability claims alleged by Thiel against the Clinic, and awarding the Clinic “$0”

in attorney’s fees. Thiel did not perfect an appeal challenging the trial court’s

dismissal with prejudice of her health care liability claims against the Clinic;

thus, the propriety of the trial court’s order dismissing with prejudice Thiel’s

claims against the Clinic is not before us.2      See Tex. R. App. P. 25.1(c)

(requiring any party who seeks to alter the trial court’s judgment or other

appealable order to file a notice of appeal).

      When a health care liability claim is dismissed with prejudice pursuant to

Texas Civil Practice and Remedies Code section 74.351(b), the trial court is

required to award attorney’s fees.        Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(b) (providing that trial court shall award reasonable attorney’s fees).

Statutes providing that a party “shall” be awarded attorney’s fees are not

discretionary. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998); Abilene

Diagnostic Clinic v. Downing, 233 S.W.3d 532, 535 (Tex. App.—Eastland



      2
       … Likewise, in her appellate brief, Thiel prays that this court “will affirm
the judgment of the trial court.”

                                        26
2007, pet. denied). We therefore hold that the trial court abused its discretion

by awarding no attorney’s fees.        See Tex. Civ. Prac. & Rem. Code Ann.

§   74.351(b); accord      Davis   v. Webb,    246 S.W.3d 768, 774     (Tex.

App.—Houston [14th Dist.] 2008, no pet.).

      We sustain Appellants’ second issue.

                                   V. C ONCLUSION

      Having overruled Appellants’ first issue, we affirm the portion of the trial

court’s November 17, 2008 order denying Dr. Salas’s motion to dismiss.

Because Thiel does not challenge the portion of the order granting the Clinic’s

motion to dismiss, we affirm that portion of the order.        Having sustained

Appellants’ second issue, we reverse the portion of the trial court’s order

awarding no attorney’s fees to the Clinic and remand the issue of attorney’s

fees to the trial court.




                                                    SUE WALKER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: August 27, 2009




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