Bell v. Markham

Full title: MICHAEL BELL AND LISA ANN BELL, Appellants v. MATTHEW MARKHAM, JEFFREY…

Court: Court of Appeals Fifth District of Texas at Dallas

Date published: Jan 30, 2020

No. 05-19-00041-CV (Tex. App. Jan. 30, 2020)

Opinion

No. 05-19-00041-CV

01-30-2020

MICHAEL BELL AND LISA ANN BELL, Appellants v. MATTHEW MARKHAM, JEFFREY LYNCH, AND THE MCKINNEY DENTIST, Appellees

Opinion by Justice Evans

On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-03485-2016

MEMORANDUM OPINION

Before Justices Molberg, Reichek, and Evans
Opinion by Justice Evans

Appellants Michael and Lisa Ann Bell appeal the trial court's dismissal of a health care liability claim filed under the Texas Medical Liability Act. In five issues, the Bells assert that the trial court abused its discretion by granting the dismissal motions filed by appellees Matthew Markham, Jeffry Lynch and The McKinney Dentist ("TMD") because: (1) the Bells timely served their expert reports on remand; (1) Robbie Henwood, D.D.S. is qualified to offer expert opinions on causation; (3) Henwood's amended expert report meets the statutory requirements; (4) Lane R. Miller, M.D. is qualified to offer expert opinions regarding causation; and (5) Miller's expert report adequately addressed causation. We reverse and remand.

BACKGROUND

This is a Chapter 74 expert report case in which the Bells sued Lynch, Markham and TMD for dental malpractice. We provided a detailed recitation of the facts in our opinion on the first appeal and will not recount all the facts here except as pertinent to this appeal. See Lynch v. Bell, No. 05-17-00942-CV, 2018 WL 1554579, at *1-2 (Tex. App.—Dallas Mar. 30, 2018, no pet.). In the first appeal, we concluded that the expert report of Henwood contained causation opinions which were insufficient and conclusory. Id. at *6. As a result, we remanded the case to the trial court for it to consider whether to grant the Bells a thirty-day extension to cure the deficiencies in Henwood's report pursuant to their request that had not been ruled on by the trial court. Id. at *7.

On June 8, 2018, the Bells submitted Henwood's amended expert report as well as Miller's expert report. By order dated August 15, 2018, the trial court granted the Bells' request to cure their report. Markham, Lynch, and TMD again moved for dismissal. Lynch and TMD argued that both Henwood's amended report and Miller's report were untimely served, that the experts were unqualified, and that their opinions on the standard of care, the alleged breaches and the causation were deficient. Markham made similar arguments regarding the expert reports. Markham, Lynch, and TMD filed motions to dismiss and the trial court granted the motions. The Bells then filed this appeal.

ANALYSIS

A. Standard of Review

We review the trial court's ruling on an expert report's sufficiency for abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). In analyzing a report's sufficiency under this standard, we consider only the information contained within the four corners of the report. See Abshire v. Christus Health Southeast Texas, 563 S.W.3d 219, 223 (Tex. 2018). Appellate courts defer to the trial court's factual determinations if they are supported by the evidence but review its legal determinations de novo. See Van Ness, 461 S.W.3d at 142. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Id.

B. Timeliness of Expert Reports on Remand

In the motions to dismiss filed on June 29, 2018 after remand, Markham, Lynch, and TMD argued Henwood's amended expert report and Miller's expert report were untimely served. This case was remanded to the trial court on March 30, 2018. Markham, Lynch, and TMD acknowledged in their June 29, 2018 motions to dismiss that the Bells served them with the supplemental and new expert reports on June 8, 2018. Not until August 15, 2018, however, did the trial court grant the Bells a thirty-day extension to cure their expert reports. Accordingly, at the time Markham, Lynch, and TMD filed their motions to dismiss, the trial court had yet to enter its order allowing the amended reports to be filed, which triggered Markham, Lynch, and TMD's "untimely" argument. At the subsequent hearing on the motions to dismiss, Lynch and TMD abandoned this objection but Markham did not. Markham, however, did not address this issue in his briefing. However, the Bells address this argument, and so must we, because it is an independent basis which if not challenged by an appellant must result in affirming the trial court's ruling. See Nall v. Plunkett, 404 S.W.3d 552, 556-57 (Tex. 2013) ("We conclude that [appellant] waived the issue of whether summary judgment was proper on the merits in this case by failing to brief [one of two grounds for summary judgment] in the court of appeals."); see also St. John Missionary Baptist Church v. Flakes, 547 S.W.3d 311, 313-14 (Tex. App.—Dallas 2018, pet. filed) (en banc) (one of two jurisdictional bases for dismissal raised in trial court but not addressed in appellant's brief on appeal required affirmance of trial court's judgment because reversible error not demonstrated pursuant to Texas Rule of Appellate Procedure 44.1(a)).

Section 74.351(c) allows a party granted an extension thirty days from the order, or thirty days from notice of the order if received after the 120-day deadline, to cure the deficiency. See TEX. CIV. PRAC. & REM. CODE § 74.351(c). A party may cure the deficiency by serving a supplemental or new expert's report. See In re Buster, 275 S.W.3d 475, 477 (Tex. 2008) ("a claimant may cure a deficiency by serving a report from a new expert"); Danos v. Rittger, 253 S.W.3d 215 (Tex. 2008) ("[W]e hold that the statute [Chapter 74] allows a claimant to cure a deficiency and that requirement may be satisfied by serving a report from a separate expert."). Because the trial court granted the Bells "30 days from the date of this Order to cure the deficiencies" and the Bells filed and served their new reports prior to the order which was before the expiration of the deadline set forth in the order, we conclude that the expert reports were timely served. Accordingly, we sustain the Bells' first issue.

C. Expert Qualifications

In their second and fourth issues, the Bells argue that Henwood and Miller are qualified to offer expert opinions. In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert on the issue of the causal relationship between the alleged departure from the accepted standard of care and the injury, harm, or damages if the person "is a dentist or physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence." See CIV. PRAC. & REM. §74.403(b). Texas Rule of Evidence 702 provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact issue. TEX. R. EVID. 702.

1. Henwood

In Markham, Lynch, and TMD's motions to dismiss, they argued that Henwood was not qualified to give testimony as to causation.¹ Markham, Lynch, and TMD specifically argued that Henwood lacked specialization in treating infections which would qualify him to give testimony regarding causation related to a heart-related condition. Essentially, they argue that a "general dentist" is not qualified to render opinions regarding a bacterial infection in a person's mouth causing a cardiac infection. Markham, Lynch, and TMD rely on Tenet Hospital Ltd. v. De La Riva, 351 S.W.3d 398 (Tex. App.—El Paso 2011, no pet.), Matagorda Nursing and Rehabilitation Ctr., LLC v. Brooks, No. 13-16-00266-CV, 2017 WL 127867 (Tex. App.—Corpus Christi-Edinburg Jan. 12, 2017, no pet.) (mem. op.), and Gower v. U. Behav. Health of Denton, No. 02-16-00245-CV, 2017 WL 3081153 (Tex. App.—Fort Worth July 20, 2017, no pet.) (mem. op.) in support of their assertion that Texas law requires that "causation experts possess specific knowledge of the medical particulars surrounding the claimed injury at issue." These cases involve instances where the court determined that the expert witnesses, though physicians, were not qualified under Rule 702 to opine on causation.

1 The Bells argue that Markham's qualification argument has been waived because he did not object within twenty-one days of service of Dr. Henwood's original report but made his qualification argument for the first time on remand. Markham does not address the waiver argument in his brief. As we address the same qualification argument raised by Lynch and TMD and reject such argument, we need not address the Bells' waiver argument.

In Tenet Hospital, the plaintiff alleged that her infant suffered hypoxic brain damage as a result of negligence and the court held that the obstetrician/gynecologist was not qualified to opine as to causation because there was no showing that he had any experience in pediatric neurology or perinatology. 351 S.W.3d at 407. Similarly, in Matagorda, the plaintiffs alleged that the nursing home failed to provide a safe environment for their father who fell while trying to get out of bed and suffered a cervical spine fracture. 2017 WL 127867, at *1. The court held that although expert was an experienced pathologist, there was nothing in his report addressing whether the alleged failures by the nursing home caused the patient's injuries. Id. at *6 ("In particular, there is nothing in the report or curriculum vitae indicating that [the pathologist] has any 'knowledge, skill, experience, training, or education' relevant to determining whether the failure to abide by nursing safety standards, as alleged in appellees' live petition, could or would proximately cause a patient to fall while trying to get out of his bed and thereby break his neck."). Finally, in Gower, the plaintiff's son was admitted to a mental health hospital and died at the facility. 2017 WL 3081153, at *1. The plaintiff alleged that the university and treating psychiatrist were negligent for prescribing excessive medication, failing to monitor or assess the patient, and other actions. Id. Although the expert provided information on his board certification and his experience in practicing psychiatry, the court concluded that the report failed to show how he was qualified to opine about "some of the physical conditions that Aaron suffered from that led to his death, including the cause of his vomiting and his lack of oxygen associated with his brain damage." Id. at *8. Based on these cases, Markham, Lynch, and TMD conclude that Dr. Henwood may be qualified to render standard of care opinions regarding dentists treating periodontal infections, but he is not qualified to opine on whether the dentists caused a heart condition.

We find these cases distinguishable from the facts at hand. As we pointed out above, section 74.403(b) provides "a dentist or physician" may provide the causation testimony in a professional liability case against a dentist, if the witness is qualified to do so under the rules of evidence. CIV. PRAC. & REM. § 74.403(b). And the supreme court recognized that some medical issues span more than one type of medical professional:

[W]hen a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields. Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 936 (1953). See also Hersh v. Hendley, 626 S.W.2d 151, 154-55 (Tex. App.—Fort Worth 1981, no writ) (Orthopedic surgeon could testify in suit against podiatrist on the standard of care for podiatric surgery since it "was common throughout the medical profession.").

Broders v. Heise, 924 S.W.2d 148, 154 (Tex. 1996). In this case, Henwood's amended report addresses his "knowledge, skill, experience, training or education" regarding the specific issue before the court—how an infection in the mouth developed into endocarditis. Not only is Henwood a licensed dentist in the State of Texas who has practiced dentistry since 1984, he obtained additional training and expertise in his doctoral pharmacology studies and teaches premedical students cardiovascular physiology. Additionally, he has treated patients with treatment plans to prevent the spread of streptococcus mitis, the bacterium at issue here. He stated in his amended report:

In addition to over thirty (30) years of experience, I have specialized training in periodontal disease and the ramifications of such disease. My specialized knowledge in this area stems from many lectures and studies throughout my career as well as the education I received while obtaining my Fellowship and Mastership in the Academy of General Dentistry. My advance training in periodontal disease includes specific training in periodontal conditions, oral infections, and the risks and sequelae that result from the failure to treat said conditions/infections.

I also have additional training and expertise in advance cardiovascular physiology that I received during my predoctoral studies for my PhD in Pharmacology. I have also lectured as an Assistant Professor at the University of Texas SA to premedical students on human physiology, and specifically cardiovascular physiology.

I have personally been involved in the treatment of patients with oral infections, including identification of oral infections, development of treatment plans to prevent the spread of such oral infections, follow-through of the treatment plans, and referrals to other dental specialists and/or physicians for treatment of such infections. I have personally been involved in the treatment of patients to prevent the spread or possibility of the spread of streptococcus mitis.

Additionally, Henwood's amended report added a section on how streptococcus mitis spreads to the heart and causes endocarditis. He stated:²

2 We quote the text in full due to its importance to our analysis here of Henwood's qualifications and our analysis later of Henwood's causation opinion.

Streptococcus mitis is usually the infectious agent in infections that originate in the tooth or the surrounding areas. Streptococcus mitis is also the infectious agent that causes endocarditis and, in some cases, have been [sic] acknowledged as respiratory

pathogens. Bacterial endocarditis is [sic] relatively, uncommon, life-threatening infection on the inner layers of the heart, including the heart valves.

It is well known throughout the dental community, as evidenced by the textbooks and references listed above, that oral hygiene is causally linked to general health. Oral infections, including periodontitis, if not timely and properly treated, can cause cardiovascular disease. Two pathways of oral infection that can lead to secondary systemic effects, including endocarditis, are: (1) metastatic spread of infection from the oral cavity as a result of transient bacteremia; and (2) metastatic injury from the effects of circulating oral microbial toxis (i.e. a periodontal infection).

Treating an oral infection promptly and properly is paramount to prevention of cardiovascular disease. If left untreated, the streptococcus mitis (the infectious agent) will bind to the platelets which travel through the bloodstream and ultimately deposit in the heart, where the bacteria will continue to colonize, attach and attack the inner lining of the heart valves. The streptococcus mitis rapidly forms colonies, grow vegetations on the heart valves, and produce toxins and enzymes, which kill and break down the surrounding tissue to cause holes in the heart valves. The endocarditis can then spread outside the heart and the blood vessels. When left untreated, endocarditis is a fatal disease.

In the case at bar, based on my education, training, and experience, it is my opinion, based on reasonable medical probability, the particular bacteria, streptococcus mitis, originated in Mr. Bell's infected (and untreated) mouth and migrated to his heart causing endocarditis, which was ultimately treated by emergency surgery on April 3, 2015.

Henwood's amended report provides that he has received advanced training in periodontal disease including specific training in periodontal conditions, oral infections, and the risks that result from the failure to treat said conditions/infections. Further, as a practicing dentist, he stated that it is "well known" in the dental community that oral infections can cause cardiovascular disease if not timely and properly treated, and that he has personally been involved in the treatment of patients to prevent the spread or possibility of the spread of streptococcus mitis. See Broders, 924 S.W.2d at 154 (favorably summarizing Hersh, 626 S.W.2d at 154-55 as holding a medical witness could testify about an issue that "was common throughout the medical profession").

The cases relied on by Markham, Lynch, and TMD are distinguishable from this case and Markham, Lynch, and TMD have failed to cite any authority in support of their assertion that Henwood needs a medical degree or other specialization in treating infections to qualify as an expert witness on causation in this case. Texas Rule of Evidence 702 provides that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact issue. TEX. R. EVID. 702. Henwood's amended report complies with these requirements. Accordingly, the trial court abused its discretion to the extent that it sustained Markham, Lynch, and TMD's objections based upon the alleged lack of qualification in Henwood's amended report. We sustain the Bells' second issue.

2. Miller

In their motions to dismiss, Markham, Lynch, and TMD objected to Miller's qualifications to the extent he was offering opinions on the standard of care for dentists or breach of the standard of care. However, Miller, the cardiologist, did not address the standard of care for dentists, the Bells do not rely on his report for that purpose, and Markham, Lynch, and TMD do not challenge Miller's qualifications to render cardiological opinions regarding causation. Section 74.403(b) allows a physician to testify about causation in a professional liability lawsuit against a dentist. See CIV. PRAC. & REM. § 74.403(b). Accordingly, we need not address the Bells' fourth issue.

D. Expert Report Requirements

A health care liability claimant must timely provide each defendant health care provider with an expert report. See CIV. PRAC. & REM. § 74.351(a). An expert report means a "written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." See CIV. PRAC. & REM. § 74.351(r)(6). To constitute a good-faith effort to comply with the statutory requirements, the report must provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. See Baty v. Futrell, 543 S.W.3d 689, 693-94 (Tex. 2018). A report that merely states the expert's conclusions as to the standard of care, breach, and causation does not fulfill these purposes. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). The expert must explain the basis of his statements and must link his conclusions to the facts. See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

1. Henwood's Expert Report

In their third issue, the Bells assert that the trial court abused its discretion when it granted Markham, Lynch, and TMD'S motions to dismiss because Henwood's amended report adequately stated the requisite standards of care, breaches of such standards, and the resulting injuries.

i) Standard of care

In their motion to dismiss, Lynch and TMD argue that the amended report "still fails to delineate the standard of care applicable to Dr. Lynch and The McKinney Dentist, instead relying on broad opinions conflating the various providers." Markham argues in his motion to dismiss that Henwood's amended report fails because it "lumps Dr. Markham and Dr. Lynch together" without specifying the standards of care applicable to them. Markham, Lynch, and TMD continue to argue on appeal that Markham and Lynch were grouped together in the standard of care. Texas law, however, provides that the same standard of care may be applied to one or more physicians if they owed the same duty to the patient. See Hollingsworth v. Springs, 353 S.W.3d 506, 514 (Tex. App.—Dallas 2011, no pet.) ("Thus, to the extent appellants contend appellee's expert reports must fail because they assign the same duties and obligations as to each of a group of defendants, we reject this contention and overrule appellants' objections."); Sanjar v. Turner, 252 S.W.3d 460, 466 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("We therefore conclude that grouping the defendant doctors together under the relevant standard of care for each condition does not render Hoffman's report inadequate."); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 367 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("However, grouping defendants together in discussing the relevant standards of care does not render an expert report inadequate when all the defendants owed the same duty to the plaintiff."). Here, Henwood's amended report grouped Markham and Lynch together as dentists who both owed the patient the same standard of care. We conclude that the trial court abused its discretion to the extent that it sustained Markham, Lynch, and TMD'S objections based upon this argument. We sustain the Bells' argument.

ii) Breach

Although Lynch and TMD did not address breach of the standard of care in their motion to dismiss, Markham asserts in his motion to dismiss that Henwood's breach opinions are conclusory and "disconnected from the specific facts bearing on Dr. Markham's care of Bell on December 22, 2014." Dr. Henwood's amended reports alleges four breaches of the standard of care, but we only address two of them:

(1) Drs. Lynch and Markham breached the acceptable standard of care by failing to diagnose Mr. Bell, treat Mr. Bell, advise Mr. Bell, and/or refer Mr. Bell to a periodontist who would be able to provide more advanced care to Mr. Bell and treat his condition.

In furtherance of this assertion, Henwood provided additional detail as to how Markham, Lynch, and TMD breached the standard of care:

As evidenced by the clinical records provided by Drs. Lynch and Markham, the complaints from Mr. Bell were ignored and not adequately addressed by Drs. Lynch and/or Markham. The clinical records provided by Drs. Lynch and Markham are devoid of any treatment plan outlining a course of treatment for Mr. Bell's infection from the periodontium. The clinical records provided by Drs. Lynch and Markham are also devoid of any evidence documenting that Mr. Bell was adequately advised that he suffered from an infection from the periodontium and that treatment of such infection was time-sensitive.

(2) The failure of Drs. Lynch and Markham, as well as the McKinney Dentist, to follow-up on this patient's care is a breach of such standards . . . .

In regard to this alleged breach, Dr. Henwood provides more detail as follows:

The standard of care for hiring, training, and supervision of staff, including the dentists and their interactions with insurance companies is intended to provide responsible care for patients or see to it that they understand their condition and are given adequate information regarding the importance of follow-up care. As patients are not trained in understanding the importance of their condition to their health it falls on the dentists or staff or clinic managers/owners to ensure proper and adequate training was provided to ensure all patients follow their instructions and are compliant with their doctor's orders. Failing compliance requires the doctors and staff to contact the patient by any and all means available and to stressfully educate them on the importance of following their doctor's recommendations. Such contacts must be documented to avoid abandonment just because a patient doesn't appreciate the importance (seriousness and urgency and consequences). As indicated previously, the clinical records of McKinney Dentist are devoid of any evidence of follow-up on Mr. Bell's condition and/or treatment.

Additionally, Henwood stated treatment with antibiotics was and specifically "[a]moxicillin has been proven to be an effective antibiotic to treat oral infections and prevent endocarditis."

In accordance with our review, we note that the medical liability statute requires the expert report provide the manner in which the care rendered by the physician or health care provider failed to meet the standards. See CIV. PRAC. & REM. § 74.351(r)(6). It is not necessary that the expert report marshal all of plaintiff's proof. Peabody v. Manchac, 567 S.W.3d 814, 821 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Here, Henwood's report stated the standard of care required Lynch, Markham, and TMD to treat Bell's periodontal infection, but the lack of documented treatment plan or referral is evidence they did not comply with the standard of care. We conclude that Henwood's report provided adequate detail on how the care rendered by Markham, Lynch and TMD failed to meet the required standards of care as described above. Accordingly, we need not address how failure to obtain a medical history or proper use of radiographs breached the standard of care. See Certfied EMS, Inc. v. Potts, 392 S.W.3d 625, 632 (Tex. 2013) ("In sum, an expert report that adequately addresses at least one pleaded liability theory satisfies the statutory requirements, and the trial court must not dismiss in such a case."). As Henwood's amended report was not conclusory on the breach of the standard of care, we conclude that the trial court abused its discretion to the extent that it sustained Markham, Lynch, and TMD's objections based upon this argument and sustain the Bells' argument.

iii) Causation

In the prior case, this Court concluded that Henwood's opinions on causation in the first report "were conclusory because they provide no explanation as how a mouth infection in fact causes heart valve failure or how different conduct by [Markham, Lynch, or TMD] would have prevented [Bell's] injuries." Lynch, 2018 WL 1554579, at *3. This Court also concluded the following about the first report:

Broadly speaking, Henwood's report is conclusory because it implies, but does not say, that periodontal infections can spread to the heart and cause heart disease if not timely and properly treated. That is, he does not explain how the defendants' improper care of Michael's mouth condition in fact caused his heart valves to deteriorate. He instead left this point for the trial court to infer from his report, even though that cause and effect relationship is essential to the Bells' case.

Id. at *5. Finally, this Court noted that Henwood's initial report did "not provide any facts to explain medically 'how and why' the breaches caused Michael's injuries such as endocarditis." Id. at *6.

In response to this Court's prior opinion, Henwood submitted additional information in his amended report entitled "Streptooccus Mitis and Endocarditis" which addressed these concerns.³ Henwood's amended report also noted that "[a]moxicillin has been proven to be an effective antibiotic to treat oral infections and prevent endocarditis." In this case, neither Markham nor Lynch prescribed an antibiotic to treat the infection. In addition, the amended report further addressed the effect of not treating the oral infection promptly:

3 See supra text at footnote 2.

Had Drs, Lynch or Marliam adequately advised Mr. Bell that he suffered from an infection and/or that treatment of such infection was critical and time-sensitive, or advised Mr. Bell to consult with another dentist, periodontist, oral surgeon or other dental specialist, Mr, Bell's oral infection could have been treated with an appropriate dosage of antibiotics to prevent the infection in his mouth, specifically 14 streptococcus mitis, from attaching to the platelets and travelling through Mr. Bell's bloodstream to his heart. Had Drs. Lynch and/or Markham timely identified such infection, and either treated such infection or warned the Bells to seek treatment for such infection, in reasonable medical probability, an appropriate dosage of antibiotics to treat such infection would have prevented the spread of the infection from Mr. Bell's mouth to his heart.

In response to the amended report, Markham, Lynch, and TMD argue that the Henwood's amended report remains insufficient because Henwood "continues to assume that the strep mitis identified in the [sic] Mr. Bell's heart originated in his mouth" and "there is simply no factual basis listed in the report for this assertion."⁴ Markham notes that "there is no statement that Bell had strep mitis bacteria in his mouth at the time of Dr. Markham's treatment and "there is no statement or explanation for the alleged 'migration.'" Markham, Lynch, and TMD argue that there is no statement by Henwood which indicates when the periodontitis or the endocarditis began which are prohibited "analytical gaps." Markham, Lynch, and TMD also argue that there is no statement from Henwood which rules out other potential explanations for the presence of strep mitis on the heart valve in April 2015. Essentially, Markham, Lynch, and TMD argue that Henwood's amended report cannot provide absolute certainty.

4 Markham makes a similar argument in his brief: "Dr. Henwood's report is fatally deficient because Dr. Henwood speculates without factual basis that the strep mitis bacteria found of [sic] Bell's heart valve in April 2015" originated in Bell's mouth.

Compliance with section 74.351 does not require a biological test of a plaintiff to ascertain the exact strain of bacteria or a genetic test to ascertain to near certainty that the bacteria later discovered in Bell's heart—even if the same strain—was the exact bacteria in his mouth. The Bells are not required to submit expert reports which negate every possibility. The purpose of evaluating healthcare liability claims early in their development by analyzing expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits. See Certified EMS, Inc., 392 S.W.3d at 631. An expert report "does not require litigation-ready evidence." Id. In fact, the "report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial." See Am. Transitional Care Ctrs. of Tex., Inc., 46 S.W.3d at 879. At this beginning step, an expert report must present a good faith effort and provide enough information to fulfill two purposes: (1) inform the defendant of the specific conduct the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Bowie Memorial Hosp., 79 S.W.3d at 52. Henwood's causation explanation meets these standards by informing Markham, Lynch, and TMD that in Henwoods's opinion their failure to treat the bacterial infection in Bell's mouth with common antibiotics resulted in the bacteria attaching to the platelets in Bell's blood and traveling to his heart where it caused endocarditis. Section 74.351 does not import all other rules of civil procedure into its ambit. Rejecting Markham, Lynch, and TMD's early-stage motion to dismiss under section 74.351 does not deprive them of the opportunities they will have to challenge the Bell's expert testimony by motions for summary judgment or at trial. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Maris v. Hendricks, 262 S.W.3d 379, 386 (Tex. App.—Fort Worth 2008, pet. denied) (challenge to expert report is limited to four corners of report so outside material cannot be utilized as in a Daubert challenge, but "[n]othing in section 74.351 provides that an expert report meeting the statute's requirements is invalidated if the expert who signed off on the report is subsequently struck pursuant to a Daubert challenge."). At this preliminary step, the Bells have submitted an amended expert report which satisfies the statutory requirements.

As we find that Henwood's report adequately sets forth sufficient causation opinions as to how untreated periodontal infections can spread to the heart and cause heart disease, we need not address his other causation opinions concerning how obtaining a medical history or how the use of radiographs could have prevented Bell's injuries. See Certfied EMS, Inc., 392 S.W.3d at 632. For all these reasons, we conclude that the trial court abused its discretion to the extent that it sustained Markham, Lynch, and TMD'S objections based upon their causation arguments and sustain the Bells' argument. Accordingly, we sustain the Bells' third issue.

2. Miller's Expert Report

In their fifth issue, the Bells assert that the trial court abused its discretion when it granted Markham, Lynch, and TMD's motions to dismiss because Miller's report adequately addressed causation. The Bells note they obtained the causation opinions of a cardiologist, without conceding doing so was necessary, in response to Markham, Lynch, and TMD'S assertions that Henwood was not qualified to testify regarding heart conditions. In response, Lynch and TMD argue that Miller's report fails to connect the alleged periodontal infection to the endocarditis because "Miller's discussion of Mr. Bell's condition is vague and requires the Court to infer that Mr. Bell had untreated strep mitis in his mouth, and that the bacteria that caused Mr. Bell's endocarditis entered his body through his mouth." Similarly, Markham argues that "Miller makes no attempt to rule out any alternative sources of infection generally, sources of strep mitis, or sources of the 'compromise.'"

Miller, a practicing cardiologist, submitted a report which explained how an oral infection can lead to endocarditis:

Bacterial endocarditis can only occur when there is a breach in our natural blood stream barriers. Bacteria is introduced into the blood stream from a compromise in this barrier. In this case, the compromise arose from the mouth in the setting a [sic] advance periodontal disease and infection involving the periodontium.

In addition, Miller submitted the following information:

Mr. Bell suffered from a severe case of bacterial endocarditis leading to destruction of his aortic valve. In April of 2015, Mr. Bell developed severe aortic valve insufficiency from secondary to endocarditis. He went into fulminant pulmonary edema secondary to profound aortic valve insufficiency, which again was a direct effect from bacterial endocarditis.

***

It is evident that Mr. Bell had active ongoing and untreated periodontal disease. The bacterial organism which was cultured on the aortic valve was identified as Streptococcus Mitis. This is a common bacteria found in the human mouth flora.

Miller stated that he reviewed Bell's medical records and Henwood's amended report and was "in complete agreement with Dr. Henwood's assessment and conclusion that the delay in care of Mr. Bell's advanced periodontal disease was the proximate cause of his development of endocarditis, leading to aortic valve failure, which ultimately required emergent aortic valve replacement."

Markham, Lynch, and TMD argue that Miller's conclusions are similar to the conclusions reached by the expert in Hendricks v. Perales, No. 05-16-01258-CV, 2017 WL 1075637, at *6 (Tex. App.—Dallas Mar. 21, 2017, no pet.). In that case, the expert concluded that as a result of injury to the colon, the patient developed abscesses and infection in the area of the hernia repair. Id. This Court determined that the report was conclusory because there was no analysis of the "how and why" of the causal relationship between the doctor's breach and the plaintiff's injury. Id. Here, however, Miller explained how an oral infection, including periodontal disease, could lead to endocarditis. Further, he concluded that Bell had active ongoing and untreated periodontal disease, and that the delay in Bell's care in treatment was the proximate cause of endocarditis. Further, to the extent that Markham, Lynch, and TMD demand absolute certainty from appellant's experts to provide that strep mitis was the infectious agent in Bell's mouth, we decline to require this information at this stage for the reasons stated above. Finally, we note that the health care liability statutes do not require a single expert to address all liability and causation issues as to a defendant and the expert reports should be read together when determining whether they represent a good-faith effort to satisfy the statutory requirements. Gannon v. Wyche, 321 S.W.3d 881, 896 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Thus, we conclude that the two expert reports read together satisfy the statutory requirements even if either one separately does not. The trial court abused its discretion to the extent that it sustained Markham, Lynch, and TMD's objections based upon their causation arguments. Accordingly, we sustain the Bells' fifth issue.

CONCLUSION

On the record of this case, we reverse the trial court's orders granting the motions to dismiss and remand for further proceedings.

/David Evans/

DAVID EVANS

JUSTICE 190041F.P05

JUDGMENT

On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-03485-2016.
Opinion delivered by Justice Evans. Justices Molberg and Reichek participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.

It is ORDERED that appellants MICHAEL BELL AND LISA ANN BELL recover their costs of this appeal from appellees MATTHEW MARKHAM, JEFFREY LYNCH, AND THE MCKINNEY DENTIST.

Judgment entered January 30, 2020.