breach standard in Texas

2023See Palacios, 46 S.W.3d at 880 ; see also Baty, 543 S.W.3d at 695 (“If ‘sticking [the optic nerve] with the retrobulbar needle’ is a breach of the standard of care . . . then the ‘proper manner’ necessarily encompasses not sticking the optic nerve with the retrobulbar needle.”).

2019However, an expert’s mere conclusions on the breach of a standard of care are not sufficient to constitute a “good faith effort.” Palacios, 46 S.W.3d at 879 .

2016See Blan, 7 S.W.3d at 744 .

2015See Blan, 7 S.W.3d at 744 .

2022For example, in Jelinek, the report’s only discussion of causation consisted of three statements asserting that that the physician’s breach of the standard of care in “reasonable medical probability, resulted in a prolonged hospital course and increased pain and suffering being experienced by Ms. Casas.” Jelinek, 328 S.W.3d at 539 .

2019“An expert report must explain ‘to a reasonable degree how and why the breach of the standard of care caused the injury.’” Id. (quoting Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010)) (internal brackets and punctuation omitted).

2024Ctr. v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no pet.) (“Nothing in [§] 74.351 suggests the preliminary report is required to rule out every possible cause of the injury, harm, or damages claimed.”); Abshire, 563 S.W.3d at 225 (stating that a causation opinion must provide a “straightforward link” between the alleged breach of the standard of care and the claimed injury).

2022A report adequately addresses causation when the expert explains “how and why” the breach of the standard caused the injury in question by “explain[ing] the basis of his statements and link[ing] conclusions to specific facts.” Abshire, 563 S.W.3d at 224 .

2006Ferguson v. Furguson , 111 S.W.3d 589, 599 (Tex. App.—Fort Worth, 2003, pet. denied); In re Estate of Hamill , 866 S.W.2d 339 , 342–43 (Tex. App.—Amarillo 1993, no pet.); Gunter v. Pogue , 672 S.W.2d 840, 842 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e).

2006Ferguson v. Ferguson, 111 S.W.3d 589, 599 (Tex.App.-Fort Worth 2003, pet. denied); In re Estate of Hamill, 866 S.W.2d 339, 342-43 (Tex.App.-Amarillo 1993, no pet.); Gunter v. Pogue, 672 S.W.2d 840, 842 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.).

2009See Hutchinson v. Montemayor, 144 S.W.3d 614, 617 (Tex. App.—San Antonio 2004, no pet.) (holding expert report did not represent a good faith effort to establish the causation element when the report did not link the purported breach of the standard of care to the plaintiff’s injury); see also Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002) (holding because the expert report lacked information linking the expert’s conclusion to the alleged breach, the trial court could have reasonably determined the report was conclusory).

2008See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex.2002) (stating that an expert report cannot be conclusory and must make a good-faith effort to summarize the causal relationship between the alleged breach of the standard of care and the alleged injury). 24 .

2015See Park Place Hosp. v. Milo, 909 S.W.2d 508, 511 (Tex. 1995) (citation omitted). 17 Dr. Mullen argued that Dr. Vascik’s testimony failed to establish causation within reasonable medical probability.50 Dr. Mullen relied on the following testimony from Dr. Vascik: Q: But we don’t really know, do we sir?

2007Park Place Hosp. v. Estate of Milo , 909 S.W.2d 508, 511 (Tex. 1995); Duff v. Yelin , 751 S.W.2d 175, 176 (Tex. 1988) .

2004See Day v. Harkins & Munoz, 961 S.W.2d 278, 280 (Tex.App.-Houston [1st Dist.] 1997, no writ).

2004See Day v. Harkins & Munoz , 961 S.W.2d 278, 280 (Tex. App.—Houston [1st Dist.] 1997, no writ).

2018Although the report need not use "proximate cause," "foreseeability," or "cause in fact" as "magical words," to satisfy the Act's requirements and show "how and why a breach of the standard of care caused injury, the expert report must make a good-faith effort to explain, factually, how proximate cause is going to be proven." Columbia Valley Healthcare Sys., L.P. v. Zamarripa , 526 S.W.3d 453 , 460 (Tex. 2017).

2017“In showing how and why a breach of the standard of care caused injury, the expert report must make a good-faith effort to explain, factually, how proximate cause is going to be proven[.]” Zamarripa, 2017 WL 2492003, at *4 .

1989To recover in a medical malpractice case the plaintiff must prove: “1) a duty requiring the physician to conform to a certain standard of conduct; 2) the applicable standard of care and its breach; 3) injury; and 4) a reasonably close causal connection between the breach of that standard of care and the harm.” Pinckley v. Dr. Francisco Gallegos, M.D., P.A., 740 S.W.2d 529, 531 (Tex.App.—San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App.—Houston [1st Dist.] 1986, no writ).

1989To recover in a medical malpractice case the plaintiff must prove: “1) a duty requiring the physician to conform to a certain standard of conduct; 2) the applicable standard of care and its breach; 3) injury; and 4) a reasonably close causal connection between the breach of that standard of care and the harm.” Pinckley v. Dr. Francisco Gallegos, M.D., P.A., 740 S.W.2d 529, 531 (Tex.App. — San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 217 (Tex.App. — Houston [1st Dist.] 1986, no writ).

2009See Duff v. Yelin , 751 S.W.2d 175, 176 (Tex. 1988); Hart v. Van Zandt , 399 S.W.2d 791, 792 (Tex. 1965).

2009See Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965).

2007Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 672 (Tex.App.-Dallas 2001, no pet.).

2007Bush v. Green Oaks Operator, Inc., 39 S.W.3d 669, 672 (Tex.App.-Dallas 2001, no pet.).

2023Thus, we will focus our analysis on whether Hughes has demonstrated that the First Lawsuit violated the Trust’s in terrorem clause. 14 Such clauses are “strictly construed, and courts should find a breach of the clause only when the acts of the party come within the clause’s express terms.” Marshall, 2021 WL 208459 , at *5; see Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (“As a general rule[,] forfeiture provisions in a will are to be strictly construed, and forfeiture is to be avoided if possible, and only where the acts of the parties come

2021Badouh v. Hale, 22 S.W.3d 392, 397 (Tex. 2000); see also Sheffield v. Scott, 662 S.W.2d 674, 676 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.) (noting that forfeiture under an in terrorem clause “is to be avoided if possible, and only where the acts of the parties come strictly within the express terms of the punitive clause of the will may a breach thereof be declared”).

2014LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 56 (Tex.App.-El Paso 2010, no pet.) (applying same principle to medical negligence claim); Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (same).

2010See Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex.App.-Houston [1st Dist.] 2000, no pet.); see also Manner Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 205 (Tex.App.-Houston [1st Dist.] 2010, no pet.).

2003Silvas v. Ghiatas, 954 S.W.2d 50, 52 (Tex.App.-San Antonio 1997, writ denied).

2001Zapata, 997 S.W.2d at 747 ; Silvas v. Ghiatas , 954 S.W.2d 50, 52 (Tex. App.--San Antonio 1997, writ denied).

2014See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119 (Tex.2004) (expert testimony necessary in attorney malpractice case to prove cause-in-fact); Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex.App.-Houston [1st Dist.] 1995, no writ) (stating, in legal malpractice case, “the breach of the standard of care and proximate cause must be proven by expert testimony”); see also W.C.

2010See id. at 120 (holding that "[i]n some cases the client's testimony may provide" causal link between attorney's negligence and client's harm, "but in others the connection may be beyond the jury's common understanding and require expert testimony"); Mazuca v. Schumann , 82 S.W.3d 90, 97 (Tex. App.--San Antonio 2002, pet. denied) ("Expert testimony [on element of breach] is not required if the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge."). (6) Assuming without deciding that any of Finley's allegations constitute a

2011See Buck, 130 S.W.3d at 291 (allegation defendants failed to properly supervise employee physician essentially was allegation of violation of standard of *233 care).

2011See Buck, 130 S.W.3d at 291 (allegation defendants failed to properly supervise employee physician essentially was allegation of violation of standard of care).

2021See Taylor, 320 S.W.3d at 575 .

2017Further, an expert report “must contain sufficiently specific information to demonstrate causation beyond conjecture” and the report “must not be conclusory in its explanation of causation; it must explain the basis of its statements sufficiently to link its conclusions to the facts.” Taylor v. Fossett, 320 S.W.3d 570, 577 (Tex. App.—Dallas 2010, no pet.).

2011Morrell v. Finke, 184 S.W.3d 257, 271 (Tex.App.-Fort Worth 2005, pet. ref'd).

2011Morrell v. Finke, 184 S.W.3d 257, 271 (Tex.App.-Fort Worth 2005, pet. ref d).

2009Vanderwerjf v. Beathard, 239 S.W.3d 406, 409 (Tex.App.-Dallas 2007, no pet.); Garland Cmty. Hosp., 156 S.W.3d at 544 (citing Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)); MacPete v. Bolomey, 185 S.W.3d 580, 584 (Tex. App.-Dallas 2006, no pet.).

2007Garland Community Hosp., 156 S.W.3d at 544 (citing, Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)); MacPete v. Bolomey, 185 S.W.3d 580, 584 (Tex.App.-Dallas 2006, no pet.).

1997Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.—Houston [1st Dist.] 1988, writ denied).

1997Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.—Houston [1st Dist.] 1988, writ denied).

2005Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994); see also MacGregor Med.

2005Id. at 544 (citing Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995)).

2024“In showing how and why a breach of the standard of care caused injury, the expert report must make a good-faith effort to explain, factually, how proximate cause is going to be proven[.]” Id.

2017Joseph Reg’l Health Ctr. v. Gonzales Page 8 461 S.W.3d 140, 142 (Tex. 2015) (“An expert must explain, based on facts set out in the report, how and why the breach caused the injury.” (emphasis in original)); see also Tenet Hosps., Ltd. v. Barnes, 329 S.W.3d 537, 543 (Tex. App.—El Paso 2010, no pet.) (“There can be no analytical gap between a breach of the standard of care and the ultimate harm.”); Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007, no pet.) (noting that courts are precluded “from filling gaps in a report by drawing inferences”).

2015“If the act or omission that forms the basis of the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of the standard of care applicable to health care providers, then the claim is a health care liability claim.” Monson, 390 S.W.3d at 601 (citing Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004)); see also Diversicare Gen.

2013“If the act or omission that forms the basis of the complaint is an inseparable part of the rendition of health care services, or if it is based on a breach of the standard of care applicable to health care providers, then the claim is a health care liability claim.” Sloan, 217 S.W.3d at 767 (citing Garland Cmty. Hosp., 156 S.W.3d at 544 ).

2010We conclude Stark's tort and breach of contract claims are based on an alleged breach of a standard of care applicable to health care providers and inseparable from the rendition of medical services because they may not be proven without expert testimony regarding Grabeal's medical condition and the level of supervision required. [7] See Shaw v. BMW Healthcare, Inc ., 100 S.W.3d 8, 15 (Tex.App.--Tyler 2002, pet. denied) (citing Gormley v. Stover , 907 S.W.2d 448, 450 (Tex. 1995)).

2010We conclude Stark's tort and breach of contract claims are based on an alleged breach of a standard of care applicable to health care providers and inseparable from the rendition of medical services because they may not be proven without expert testimony regarding Grabeal's medical condition and the level of supervision required.7 See Shaw v. BMW Healthcare, Inc., 100 S.W.3d 8, 15 (Tex.App.--Tyler 2002, pet. denied) (citing Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995)).

2009The plaintiff, in order to prevail on a medical malpractice claim, must establish four elements: "(1) a duty requiring the defendant to conform to a certain standard of conduct; (2) the applicable standard of care and its breach; (3) resulting injury; and (4) a reasonably close causal connection between the alleged breach of the standard of care and the alleged injury." Williams , 964 S.W.2d at 86 .

2009The plaintiff, in order to prevail on a medical malpractice claim, must establish four elements: “(1) a duty requiring the defendant to conform to a certain standard of conduct; (2) the applicable standard of care and its breach; (3) resulting injury; and (4) a reasonably close causal connection between the alleged breach of the standard of care and the alleged injury.” Williams, 964 S.W.2d at 86 .