OPINION
This is а health care liability case. The issue in this interlocutory appeal is the adequacy of the expert report filed by the Garcias, who sued Tenet Hospitals, Ltd. d/b/a Providence Memorial Hospital (Providence) and others over the death of Armando Garcia. The trial court denied Providence’s challenge to the preliminary expert report served by the Garcias. We conclude the trial court did not abuse its discretion and affirm.
BACKGROUND
We take the following background information from the petition and the expert report in issue, noting that the factual claims have not yet been proven.
July 22, 2011
Armando Garcia, who was 46 at the time, saw his family practitioner the morning of July 22, 2011. He complained of shortness of breath, chest pain, and nаusea. His electrocardiogram (ECG) was abnormal. Garcia was given aspirin and oxygen, and sent by ambulance to the emergency room at Providence, arriving at the ER just before noon.
Garcia continued to complain of shortness of breath and chest pain at the ER. Another ECG was abnormal. Garcia reported having chest pain the day before while walking at work, and earlier that day while climbing stairs. His chest pain was alleviated by rest and aggravated by exertion. The ER doctor ordered oxygen, IV fluids, pain medication, and the anti-coagulant Lovenox.
Garcia was admitted to the hospital under the care of a family praetice/hospitalist at 1:05 p.m. that day. At 2:27 p.m., Dr. Roger Belbel, a cardiologist, was asked to consult on thе case given Garcia’s complaints of chest pain. Dr. Belbel gave telephone orders for a two dimensional echocardiogram and asked that Garcia be scheduled for a stress test with contrast material in the morning.
Neither Dr. Belbel nor the admitting doctor saw Garcia on the 22nd. Instead, a nurse practitioner working for the admit
July 23, 2011
Dr. Belbel did see Garcia sometime before 8:50 a.m. оn the morning of the 23rd. Garcia was anxious and felt pressure in his chest, but no more chest pain. He had been up and walking the hospital floor. He reported having almost passed out from walking a few days before. Dr. Bel-bel noted it was unclear whether a cardiac or a pulmonary issue was causing Garcia’s chest pain and shortness of breath. The doctor noted the need for a CT scan to rule out a pulmonary embolism, and that he would need to review the results of the echocardiogram he had ordered the day before.
Garcia was taken for his stress test at around 9 a.m. The test involved the injection of a contrast material, which was given at 9:19 a.m. At some point during the test, Garcia went into respiratory arrest. A rapid response team was called at 10:58 a.m. Despite their efforts, Garcia expired and was pronounced dead at 11:26 a.m.
A later autopsy determined Garcia died from “bilateral pulmonary thromboembolism with pulmonary infarction.” The lungs had a well formed clot in the main pulmonary artery. There were also multiple clots in the small and medium-sized pulmonary blood vessels, all of which led to an “80% hemorrghic [sic] infarction of the pulmonary parenchyma[.]” His cardiac arteries showed only minimal changes.
Several of the physicians made chart entries after Mr. Garcia died. Dr. Belbel is reported to have written:
I had just finished reviewing his echo doppler this morning shortly after the IV lexi dose had been given and that [sic] I noted some alarming findings in the study that suggested he may hаve already presented to the emergency room and to his physician with a pulmonary embolism rather than a coronary ischemic problem as had been suggested by the Nurse Practitioner that had seen him yesterday as well as his primary physician who referred him to the ER, and by the ER physician that had seen him in the ER and had neglected to obtain a CT scan with contract [sic] in the ER to exclude the diagnosis of pulmonary embolism and aortic dissection, as well as a calcium coronary score ... [•]
The admitting doctor made a chart entry a week following the death suggesting Mr. Garcia may have arrested due to possible allergic reaction to contrast material injected during the stress test.
The Expert Reports
The Garcias filed health care liability clаims against Providence, the ER physician, the admitting physician, and the nurse practitioner. They did not sue Dr. Belbel. As provided by statute, they were required to serve a complying preliminary
Dr. DeBauche’s initial report reflects he reviewed Garcia’s medical records from the primary care physician and Providence, an outline of the medical care (attached to his report), and the autopsy report. Dr. DeBauehe concluded the emergency room physician, the admitting physician, the nurse practitioner, as well as Providence breached the applicable standards of care which led to Garcia’s death. We focus only on the allegations against Providence.
The report contends a patient presenting with a history of fainting, shortness of breath, and atypical chest pain must be evaluated to “rule out [the] triple threat,” which includes the three major risks facing such a patient — pulmonary embolism, aortic dissection, and myocardial infarction (heart attack). From the record we gather that pulmonary embolism describes a blood clot(s) collecting in the lungs that can potentially diminish or cut off a person’s oxygen intake. Dr. DeBauehe describes pulmonary embolism as a threat as serious as the cardiac conditions.
Dr. DeBauehe makes two allegations against Providence. First, Garcia was given a two dimensional echocardiogram on July 22. The echocardiogram showed a TrVelocity of 321.67 cm/s and estimated right ventricle systolic pressure of 56.82mm Hg. Dr. DeBauehe describes these numbers as “very abnormal” with one being twice the normal value. A chart note by Dr. Belbel, made after Mr. Garcia passed away, referred to the findings as “alarming.” Dr. DeBauehe concludes the echocardiogram technician, whom we presume to be an employee or agent of Providence, had a duty to report these findings immediately to Dr. Belbel. Dr. DeBauehe further claims that had Dr. Belbel been alerted to these findings, he would have ordered a CT scan with сontrast, which takes about 15 minutes, and which would have definitively diagnosed the pulmonary embolism.
Dr. DeBauehe also faults the emergency room nurses for failing to tell Dr. Belbel when they called to arrange the consult on July 22 that Garcia had shortness of breath and was obese (he weighed some 350 pounds). He believes that had Dr. Belbel known of Garcia’s shortness of breath and body weight, he would have also ordered the CT scan and discovered the pulmonary embolism earlier.
As to causation, Dr. DeBauehe summarily concluded that Dr. Belbel would have ordered a CT scan. “This would have diagnosed PE and prevented Mr. Garcia’s death.” Providence challenged this report on several grounds. Relevant here, it contended the causation opinion wаs eoncluso-ry. Providence also contended that Dr. DeBauche’s theory concerning what Dr. Belbel would have done had he been provided different information was nothing more than speculation and conjecture.
The Garcias responded to this challenge by serving, within the time limit for their original report, an “addendum report” authored by Dr. DeBauehe. That addendum states: “I have read the Affidavit of Dr. Roger Belbel dated 11/11/13, which substantiates the statements and opinions made in my letter to you dated 10/14/13. I agree with Dr. Belbel’s statement that treatment with anticoagulant and thrombo-lytic medications on 7/22/11 would have prevented Mr. Garcia’s death on 7/23/11.” Simultaneously, the Garcias filed and served an affidavit from Dr. Belbel, which in substance states that had he been tоld
Providence renewed its challеnge to this combination of reports. The trial court heard and rejected its challenge.
STANDARD OF REVIEW
We begin with the familiar standards governing expert medical reports in health care liability claims. The statute requires that within 120 days after a defendant health care provider files an answer, the plaintiff must serve an “expert report” as to that provider. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).
The phrase “fair summary of the expert’s opinions” means at least that the expert must state more than a mere conclusion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios,
The trial court makes the decision whether the report is sufficient. Our role, whether the trial court has approved or rejected the report, is to determine if the trial court abused its discretion. Tenet Hospitals Ltd. v. Boada,
Providence brings two issues on appeal. In Issue One it asks whether it was proper for the trial to court to credit Dr. De-bauche’s adoption of Dr. Belbel’s affidavit given that Dr. Belbel: (a) only makes self-serving statements; (b) is a potentially responsible party; and (c) is not himself offered as a qualifying expert. In Issue Two Providence asks if the causation opinion, which assumes that an earlier communication of Garcia’s condition to Dr. Belbel would have resulted in a different treatment regime, is adequately linked to the facts of the case. Providence weaves into its discussion of these issues various arguments concerning how the report fails to meet several requisites of Rules 702 and 703 of the Texas Rules of Evidence.
The Expert’s Reliance on Dr. Belbel’s Affidavit
As we understand its contention, Providence objects to Dr. DeBauehe adopting Dr. Belbel’s reasoning and opinions. Its objection is not based on the simple mechanics of Dr. DeBauehe adopting by reference another physician’s opinion, but rather it is primarily focused on adopting another physician’s opinion without any analysis or indicia of reliability.
An initial premise for much of Providence’s argument is represented by the statement in its reply brief that “[t]he statute requires Dr. DeBauche’s causation testimony to comply with the rules of evidence generally applicable to expert opinion testimony.”
Which rules of evidence apply to preliminary expert medical reports in health care liability claims?
An “expert” is a defined term in health care liability claims, and the expert must possess certain statutorily designated qualifications. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5). Specifically, an expert providing a causation opinion must be a “phy
But we think this goes too far. Section 74.351(r)(5)(C) incorporates the rules of evidence in the context of the expert’s qualifications, not the substance of the opinion itself. Certainly Tex. R. Evid. 702’s requirement that the witness must be qualified by “knowledge, skill, experience, training, or education” would apply. But we think it premature at this early stage of a case to impose all of the additional requirements in Rules 702 and 703 concerning relevance and reliability. We take the language in Section 74.351(r)(5)(C) at face value that the reference to the Texas Rules of Evidence pertains to qualifications, and not to the opinion itself. Otherwise, every report challenge would turn into a mini-Daubert Robinson hearing.
Providence also relies on Collini v. Pustejovsky,
Collini, however, is factually distinguishable if for no other reason than Dr. Belbel’s qualifications are included as a part of his affidavit.
No doubt, Tex. R. Evid. 702 generally requires that an expert’s opinion must be both relevant and reliable. Gammill and Tamez, both cited by Collini base this requirement on Robinson. Gammill,
We emphasize that all of the Rule 702 and 703 requirements will fully apply to these opinions at other stages of the case, such as summary judgment and trial.
We also emphasize that the trial court still needs enough information from the expert report to verify that the claim has merit. Palacios,
Did the trial couri abuse its discretion in crediting Dr. DeBauche’s reliance on Dr. Belbel’s affidavit?
Our view of Section 74.351(r)(5)(C) answers most of Providence’s claims. As a part of its first issue, Providence challenges Dr. Debauche’s reliance on Dr. Bel-bel’s affidavit. It criticizes Dr. Belbel’s affidavit on a number of levels: it is “self-serving”; Dr. Belbel’s actual actions belie what he claims in the affidavit; Dr. Belbel might be at fault because other defendants below have attempted to designate him as a responsible third party; Dr. Belbel’s statements about what he would have done are inherently subjectivе, and could never be tested. Providence’s precise legal argument is that Dr. DeBauche can only rely on materials regularly relied on by an expert, and no expert would rely on these kind of self-serving or questionable claims made by the treating physician. It argues that Dr. DeBauche could not have reasonably relied on Dr. Belbel’s assertions, as a matter of law.
We reject this argument for a number of reasons. First and foremost, the requirement concerning what an expert can rely on is found in Tex. R. Evid. 703, and we find no basis to impose that requirement upon a preliminary expert report in a health care liability claim. Many of the reliability measures that Providence raises also flow out of the “assistance” clause of Rule 702, and we find no bаsis to apply them at this juncture. We acknowledge the case law holding that if the preliminary expert relies on some other physician’s opinion, there must be some indication of that other physician’s qualification to express the opinion relied upon. Collini,
Providence cites a number of cases for the proposition that statements in an affidavit must be “clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and readily controvertible[.]” E.g., Brown v. Mesa Distribs.,
Closely aligned to this argument, Providence claims the statements by Dr. Belbel are inherently subjective, and could never be tested for their truth. And indeed, in the summary judgment context, a claim by an interested witness that cannot be readily controverted will not support summary judgment in some types of cases. E.g., Garcia v. C.F. Jordan, Inc.,
Nor is Dr. Belbel’s self-interest a basis for discounting his assertions as a matter of law. At some level, every entry made in a medical record is motivated by self-interest. A nurse makes accurate chart entries to better serve their patient, but also because hospital policy likely requires it — if the nurse failed in this duty he or she would soon be out of a job. A doctor makes chart entries to better serve their patient but also in part out of self-protection if questions later arise. A patient discloses their symptoms in the hopes this will assist in their cure. Some self-interest may be more apparent, as with chart entries after a patient’s untoward outcome, ■but we doubt the courts could articulate a standard that a trial court could apply to' cull out some self-interested statements from others. Ultimately, that seems a function for a jury.
Providence also contends that Dr. De-Bauche could not have relied on Dr. Bel-bel’s affidavit because the actual events belie what he claims in the affidavit. According to Providence, Dr. Belbel was aware that the results of the echocardio-gram were available on the morning of the 23rd, but he decided to proceed fwith the stress test before having a CT scan rule out a pulmonary embolism. We have carefully reviewed the record and find the time line of events the morning of the 23rd ambiguous at best. Dr. Belbel dictated his chart note at 8:50 a.m. suggesting that he saw the patient sometime before then. He states that he would review the echocardi-ogram that morning, suggesting he had not yet seen it. A later note states he saw the echocardiogram after the contrast material for the stress test had already been administered, suggesting the test had already started. The summary of the medical chart does not affirmatively indicate Dr. Belbel consciously decided to proceed with the stress test before having a CT scan done. In any event, the question is what Dr. Belbel would have done if the CT scan had been done the day before. These facts may all be relevant for the fact finder’s determination, but they hardly require
Finally, we could speculate on why the Garcias did not sue Dr. Belbel, or why he has not been added as a third-party defendant, but whether he is a party does not dictate as a matter of law whether his statements carry any credence. The medical chart is no doubt full of statements that will be attributed to Mr. Garcia, the ER doctor, the admitting physician, and the nurse practitioner, all of whom are already parties to the underlying case. If an expert is not required to ignore these chart entries, we see no reason the expert would be required to ignore the assertions of a potential party (or potential responsible third party).
In sum, we conclude the trial court did not abuse its discretion in crediting Dr. DeBauchfe’s reliance on Dr. Belbel’s affidavit. We overrule Issue One.
Adequacy of Causation Opinion
In Issue Two, Providence contends Dr. DeBauche’s causation opinion is not adequately tied to the facts of this case. A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm, and that absent that act or omission, the harm would not havе occurred. Clapp v. Perez,
It is clear an expert report that speaks only of possibilities will not suffice to meet this standard. Bowie Memorial Hospital,
But, beyond thesе rather clear landmarks, the waters become a bit murkier. Providence relies on a number of cases finding causation opinions inadequate because they raised more questions than they answered. One such case is Jones v.
Another illustrative case is Kapoor v. Klovenski, No. 14-11-00118-CV,
Conversely, the Garcias rely on two decisions that approved expert causation opinions arguably less detailed than the one here. In Manor Care Health Services, Inc. v. Ragan,
The Garcias also rely on this Court’s opinion in Bustillos v. Rowley,
Ultimately, we resolve this issue based on what was before the trial court. The trial court had before it not only Dr. Bel-bel’s statement that he has successfully treated patients with pulmonary embolisms before, but also the precise manner
Providence also аrgues the causation theory here is an impermissible “chain of speculations” (“if the correct diagnostic test had been run, then the correct diagnosis could have been reached ... ”). But at some level, every negligence case is built on some assessment of what the actors would have done but for the negligent act. If the nurse made an accurate sponge count, then the surgeon would not have closed the wound until every sponge was found. Only when the chain becomes too attenuated can a court, as a matter of law, decide the cause-in-fact issue. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason,
Related to its attack on the causation chain, Providence faults Dr. DeBauche’s report for not ruling out other possible causes for Garcia’s death. We agree that ruling out other causes in the causation equation will be relevant in subsequent proceedings. Jelinek v. Casas,
In sum, we conclude the expert’s causation opinion is adequate. Issue Two is overruled.
CONCLUSION
We are unable to conclude the trial court abused its discretion in refusing to dismiss the suit against Providence based on its arguments raised under Issues One and Two. Accordingly, we affirm.
Larsen, J. (Senior Judge), sitting by assignment
Notes
. It is unclear why the results of the echocar-diogram were not in the medical chart by that time, or if they were, why Dr. Belbel had not reviewed the chart before or while he saw Garcia. The medical chart is not a part of our record. Most of the chronological information about thesе events comes from a medical summary attached to the expert’s report, which at times paraphrases, and at times quotes, segments of the medical record.
. The prior version of the statute in effect when this suit was filed required the report to be served within 120 days of filing the suit. Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of June 17, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex.Gen.Laws 1590. The change is of no consequence to the issues before us.
.In this opinion, we will refer to the restyled versions of Rules 702 and 703, which became effective April 1, 2015. See Tex. Sup.Ct. Misc. Dkt. No. 15-9048 (March 10, 2015), at 41. We note that the “restyling changes are intended to be stylistic only.” Id. at 1.
Tex R. Evid. 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or-otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
Tex R. Evid. 703. Bases of an Expert's Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
. Palacios held that in determining the adequacy of a report, the court should look only to the four corners of the report itself.
. Similar statements appear at eight other places in Providence's briefing to this Court.
. Section 74.403 sets out additional qualifications such as licensure and active practice that are not in issue here.
. E.I. du Pont de Nemours & Co. v. Robinson,
. Dr. Belbel’s curriculum vitae reflects that he is board certified in internal medicine, cardiovascular medicine, and interventional cardiovascular medicine. He was the chief of cardiology services at William Beaumont Army Medical Center and Las Palmas Medical Center. Relevant here, he has written on the issue of pulmonary embolisms. Nina J. Karlin MD, Roger J. Belbel MD, James P. Bradley MD, Acute Pulmonary Distress Syndrome due to Massive Pulmonaty Embolism, 91 Southern Medical Journal, No. 10, 998 (Oct.1998).
. Gammill also addressed whether the experts were qualified to express the opinions they did under Rule 702.
. Several cases which Providence relies on in its Reply Brief, such as Fraud-Tech, Inc. v. Choicepoint, Inc.,
. Palacios,
. We also note that at some point Dr. Bel-bel's statements can be tested both against his actions on the morning of the 23rd and any literature that sets out accepted algorithms for treating a patient such as Mr. Garcia.