Austin Behavioral Hospital, LLC Operating as Cross Creek Hospital and Subject to It's Previously Filed Special Appearance, Acadia Healthcare Company, ,Inc. v. Eddie Lee Wilson, and Chester Jackson Sr., as Next Friend for Chester Jackson, Jr., Heather Martin A/N/F CCJ I, Heather Martin A/N/F CCJ, II, Pe'trecia Ray A/N/F D. H.

Opinion issued August 21, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00061-CV
———————————
AUSTIN BEHAVIORAL HOSPITAL, LLC OPERATING AS CROSS
CREEK HOSPITAL AND, SUBJECT TO ITS PREVIOUSLY FILED
SPECIAL APPEARANCE, ACADIA HEALTHCARE COMPANY, INC.,
Appellants
V.
EDDIE LEE WILSON AND CHESTER JACKSON SR. AS NEXT FRIEND
OF CHESTER JACKSON JR., HEATHER MARTIN AS NEXT FRIEND OF
C.C.J. AND C.C.J., AND PE’TRECIA RAY AS NEXT FRIEND OF D.H.,
Appellees

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2021-23885

MEMORANDUM OPINION
Appellees—family members of Chester Jackson Jr.—allege that thirty-year-

old Jackson was admitted to Cross Creek Hospital after having a mental health

episode. Soon after his admission, Jackson experienced severe agitation requiring

hospital staff to physically restrain him and administer a combination of

antipsychotic and sedative medications. Jackson quit breathing almost immediately

and went into cardiopulmonary arrest. Four hours after his admission to Cross Creek

Hospital, Jackson was transferred to another hospital for emergency care. Jackson

allegedly suffered severe brain injury, and he remains in a permanent vegetative

state.

Jackson’s family sued Cross Creek Hospital, appellant Acadia Healthcare Co.,

Inc., and several individuals asserting claims under the Texas Medical Liability Act.1

As required under the TMLA, Jackson’s family timely served an expert report

opining that Cross Creek Hospital breached the standard of care owed to Jackson

and caused serious bodily injury. Specifically, the report criticized Cross Creek

Hospital’s delay in initially treating Jackson for severe agitation, application of

physical restraints to him, administration of medications to him, and delay in

providing first aid and resuscitative efforts after he quit breathing.

1
Acadia filed a special appearance, which the record indicates has not been decided
by the trial court.
2
Acadia and appellant Austin Behavioral Hospital, which purportedly operates

as Cross Creek Hospital (collectively, “the Providers”), objected to the expert report

and moved to dismiss the lawsuit under the TMLA. The Providers also requested

attorney’s fees and costs. The trial court denied the motion.

In a single issue, the Providers contend that the trial court abused its discretion

by overruling their objections to the expert report and denying their motion to

dismiss.2 They argue that the expert report did not adequately describe the standard

of care, how they allegedly breached the standard of care, and how any breach

caused Jackson’s alleged injuries. In their reply brief, the Providers argue for the

first time on appeal that the expert report did not address Acadia’s conduct.

We hold that the expert report met the “modest requirement” imposed by the

TMLA “at this early stage of litigation.” See Bush v. Columbia Med. Ctr. of

Arlington Subsidiary, L.P., 714 S.W.3d 536, 543 (Tex. 2025); see also Walker v.

Baptist St. Anthony’s Hosp., 703 S.W.3d 339, 342–43 (Tex. 2024) (per curiam). We

affirm.

2
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9) (authorizing party to appeal
interlocutory order denying motion for relief under Civil Practice and Remedies
Code Section 74.351(b) with exception not applicable here).
3
Background

A. Plaintiffs’ Allegations and Lawsuit

As alleged in this lawsuit, Jackson had a mental health episode on April 19,

2019. His family called 911 and requested assistance in transporting Jackson to a

mental health facility. A Burleson County Sheriff’s Office deputy responded and

observed Jackson with a blank stare and clammy skin, speaking gibberish, and

sweating profusely. The deputy arrested Jackson and confined him in the Burleson

County Jail for two days. A jailer allegedly abused him while he was in jail. Jackson

was transported to Cross Creek Hospital, a mental health facility in Austin, where

he was admitted at 2:15 p.m. on April 21, 2019. Jackson appeared to be in an altered

mental state when he arrived at the hospital.

When hospital staff told him that he was no longer in jail, Jackson became

uncooperative and demanded to leave the hospital because he did not consent to

treatment. Dr. Caanan Blakemore and John W physically restrained Jackson.3 Dr.

Shamima Khan prescribed Jackson a combination of three medications, which

Jackson’s family calls a “B-52 cocktail,” to be administered by injection. Nurse

Jordan Gouldburn administered the medication to Jackson while he was restrained.

About five minutes after the medication was administered and while being

physically restrained in a prone position, Jackson became unconscious, his

3
The appellate record does not contain a full name for John W.
4
respirations were shallow, his pulse was faint, and he went into cardiopulmonary

arrest.

Approximately four hours after his admission, Cross Creek Hospital staff

transferred Jackson to St. David’s Hospital for emergency medical treatment.4

Jackson allegedly “suffered severe brain damage as a result of the hold and

deprivation of oxygen to his brain.” He remains in a minimally conscious state and

is non-verbal, and he is confined to an assisted living facility.

Jackson’s family filed suit on his behalf against Cross Creek Hospital, Acadia,

and various doctors and nurses, including Blakemore, W, Khan, and Gouldburn.5

The live petition asserted claims for federal nondiscrimination and civil rights

violations, medical negligence under the TMLA, and assault and battery. See 29

U.S.C. § 794; 42 U.S.C. § 1981; TEX. CIV. PRAC. & REM. CODE §§ 74.001–.552.

B. Expert Report

Jackson’s family served Cross Creek Hospital and Acadia with an expert

report as required by the TMLA. See TEX. CIV. PRAC. & REM. CODE § 74.351(a),

4
The record and the responsive brief by Jackson’s family variously refer to this
hospital as St. Davis Hospital and St. David’s Hospital. We refer to this hospital as
St. David’s Hospital.
5
The underlying lawsuit was filed by Eddie Lee Wilson and Chester Jackson Sr. as
next friend of Jackson, who allegedly lacks capacity to bring suit on his own behalf;
Heather Martin as next friend of minors C.C.J. and C.C.J.; and Pe’trecia Ray as next
friend of minor D.H. The individual doctors and nurses named as defendants in the
live petition are not parties to this appeal.
5
(r)(6). The report was authored by Dr. Lynn P. Roppolo, a practicing board-certified

emergency medicine physician and professor of emergency medicine at the

University of Texas Southwestern Medical Center in Dallas. Her qualifications are

not disputed on appeal.

Roppolo based her opinions on Jackson’s medical records, including records

from Cross Creek Hospital, St. David’s Hospital, and Travis County EMS which

transported Jackson between the hospitals. Roppolo also reviewed video recordings

showing Jackson’s arrest, his incarceration during the two days in jail, and his arrival

at Cross Creek Hospital.

Roppolo stated that Jackson was 30 years old and healthy when he was

admitted to Cross Creek Hospital. She acknowledged that Jackson had reportedly

suffered a mental health episode, and his family called the police for assistance. In

jail, Jackson exhibited odd behavior, such as taking off his clothes and standing

naked in the booking lobby, making nonsensical communications, exhibiting

agitated behavior, and biting an officer. Jail medical records stated that Jackson was

in a “state of psychosis and paranoid in delusions” and recommended inpatient

psychiatric hospitalization. Jackson allegedly fell at the jail and “was physically

tossed by an officer striking his head on a metal toilet.” Roppolo stated, however,

that the fall did not cause a change in Jackson’s mental status or neurological

function, nor did it induce signs of traumatic brain injury.

6
Jackson was transferred to Cross Creek Hospital two days after he was booked

into jail. He was admitted directly to the psychiatric intensive care unit at 2:15 p.m.

for agitation and gross psychosis. Dr. Jaswant Pandher, who is also named as a

defendant, evaluated Jackson at 3:17 p.m. and diagnosed him with “unspecified

schizophrenia spectrum and other psychotic disorder” and recommended acute

inpatient psychiatric treatment. The medical records contained no additional notes

concerning Jackson between his admission at 2:15 p.m. and 5:30 p.m.

At 5:30 p.m., Jackson became more agitated, stated that he wanted to leave,

and periodically banged on doors and windows. At 5:36 p.m., he allegedly physically

and verbally assaulted a hospital staff member and “intended to elope” from the

hospital, so hospital staff put him in “an undescribed ‘personal hold’” that Roppolo

described as a physical restraint. Jackson was placed in this hold for sixteen minutes

from 5:36 p.m. until 5:52 p.m. Within two minutes of placing him in the hold,

hospital staff tried to de-escalate Jackson, but he continued to be hostile and

assaultive. Dr. Khan prescribed a combination of antipsychotic and sedative

medications known as a “B-52”: 2 mg of lorazepam, 10 mg of haloperidol, and 50

mg of diphenhydramine. Nurse Gouldburn administered the prescribed medication

at 5:47 p.m., eleven minutes after staff placed Jackson in a physical hold.

When hospital staff released Jackson from the physical hold five minutes later

at 5:52 p.m., he was unconscious and unresponsive with shallow respirations and a

7
faint pulse. He was turned supine, but his pulse faded and became absent, his eyes

were “fixed and dilated,” and he showed “no signs of consciousness.” Hospital staff

initiated chest compressions at 5:54 p.m. and called EMS at 5:55 p.m. Staff

continued chest compressions until EMS arrived. EMS used an automated external

defibrillator to give Jackson one shock at 6:01 p.m. Jackson’s pulse returned at 6:13

p.m., and he was “revived” at 6:14 p.m. He was transported to St. David’s Hospital

at 6:21 p.m.

At St. David’s Hospital, Jackson was neurologically “completely

unresponsive.” He was intubated and given a feeding tube. A toxicology screen

revealed the presence of benzodiazepines and marijuana. Jackson was treated for

possible aspiration pneumonia and admitted to the critical care unit. In the following

days, doctors diagnosed Jackson with severe cardiomyopathy. A neurological

consultation raised concern that Jackson had an anoxic brain injury and hypoxic-

ischemic encephalopathy which Roppolo explained “basically indicated that Mr.

Jackson sustained brain [injury] from low oxygen levels.” An MRI indicated that

Jackson had diffuse anoxic brain injury.

Jackson remained in a vegetative state in early May 2019 with a tracheotomy

tube to breathe and a feeding tube to receive nutrition because he was “no longer

able to maintain these essential life-sustaining functions on his own due to his anoxic

8
brain injury.” Jackson was transferred to a long-term care facility in June 2019, and

he “currently remains in need of long-term care in a permanent vegetative state.”

Regarding the standard of care owed by Cross Creek Hospital, Dr. Roppolo

stated that the “care and treatment of an agitated patient should be based on the

BETA guidelines, which stands for ‘Best practices in the Evaluation and Treatment

of Agitation.’” According to Roppolo, severe agitation is a medical emergency

requiring emergent medical care and a prompt, appropriate response. The standard

of care applicable to severely agitated patients is to first attempt de-escalation to

prevent injury to the patient, others, and the environment. But Roppolo noted that

de-escalation “is almost always not effective at this level of agitation.”

Roppolo opined that severely agitated patients typically require medication to

reduce agitation symptoms. Administering medication often requires physical

restraint without the patient’s consent. Two types of medication are usually

administered: sedatives and antipsychotics if the patient has psychotic symptoms

like Jackson did. Hospital staff administered 10 mg of haloperidol, 2 mg of

lorazepam, and 50 mg of diphenhydramine, or Benadryl, to Jackson. Roppolo stated

that haloperidol is an antipsychotic used for severe agitation. The typical dose is 5

mg, and the maximum dose is 10 mg for larger patients. Lorazepam is a

benzodiazepine, which is a sedative commonly administered to severely agitated

9
patients alone or in combination with an antipsychotic medication. The usual dosage

of lorazepam is 2 mg when administered with haloperidol.

Roppolo stated that the standard of care in this case required administering

only 5 mg of haloperidol to control agitation because Jackson is average height and

weight: “the dosage of 10 mg of haloperidol was twice the dose that is typically

given to a patient of Mr. Jackson’s height and weight.” Roppolo also stated that it

“is the widely accepted practice to refrain from using all three medications, a cocktail

referred to as a B-52, as the addition of diphenhydramine only prolongs sedation of

the patient which also may reduce a patient’s ability to breathe effectively.”

Roppolo also opined about physically restraining Jackson and placing him in

a prone position. She stated that Jackson was “in a severely agitated state for a

prolonged period of time then placed in a physical hold for a prolonged period of

time in his severely agitated state as he was not given medications to reduce his

agitated behavior until 11 minutes after he was placed in a physical hold.” Jackson

was also physically restrained in a prone position, which “reduce[s] an individual’s

ability to breathe effectively, to inhale oxygen and to exhale carbon dioxide.” The

combination of physical restraint, restraint in a prone position, and administration of

“large doses of medication” can “further impair his ability to breathe.”

Finally, Roppolo stated that Cross Creek Hospital staff did not adequately

monitor Jackson and document his vital signs. She opined that the “standard of care

10
for individuals requiring sedation is to monitor their oxygenation, heart rate and

rhythm, and exhaling carbon dioxide using simple monitoring equipment and to

check vital signs (heart rate, respiratory rate, blood pressure) once the patient is in a

state where these can be performed.” But for two minutes after Jackson was released

from physical restraint, hospital staff did not “clearly” document “that his

respirations were shallow, his pulse was faint and he was unresponsive.” No

documentation showed that staff checked his vital signs or oxygenation levels.

Dr. Roppolo opined that Cross Creek Hospital deviated from the standard of

care in four ways: (1) failing to control Jackson’s agitation to avoid injury;

(2) improperly restraining him; (3) administering the combination of medications at

an excessive dosage; and (4) delaying first aid and resuscitation.

First, Roppolo opined that “the combination of the physical restraint, prone

positioning and large doses of these medications to control his agitation prevented

him from breathing effectively resulting in worsening his acidotic state, impaired his

ability to breathe and ultimately caused his cardiopulmonary arrest in which he

stopped breathing and his heart stopped beating.”

Second, Roppolo opined that Jackson was restrained for too long and not

medicated soon enough. She stated that “agitated patients who require physical

restraint need to be promptly medicated to reduce their level of agitation.” Cross

Creek Hospital staff physically restrained Jackson for eleven minutes before

11
administering medication. Moreover, when Jackson was released from physical

restraint five minutes after he was medicated, he “was completely limp,

unresponsive, had shallow breathing and a faint pulse and was immediately followed

by full cardiopulmonary arrest two minutes later.” “There was a period of time

before Mr. Jackson’s physical hold was released when it should have been evident

that his level of agitation had decreased,” and at this time, hospital staff should have

discontinued physical restraint.

Hospital staff also placed Jackson in a prone position while being physically

restrained, and “the prone position is likely to cause greater restriction in breathing

than other positions which in Mr. Jackson’s situation, worsened his acidotic state as

it prevented him from using his breathing to compensate for his metabolic acidosis.”

Untreated “acidosis can progress to a level that is incompatible with life resulting in

cardiopulmonary arrest.”

Third, Roppolo opined that Cross Creek Hospital staff administered too much

medication to Jackson and did not consider Jackson’s height and weight when

determining the dosage. Both the “medication dosing and combination were

excessive” for Jackson, who is an “average size male” weighing 169 pounds and

standing at 5’8”. Combining lorazepam and diphenhydramine with haloperidol “is

not necessary and only increases and prolongs his sedation and does not help to

reduce his agitation symptoms.” Lorazepam and diphenhydramine are “CNS

12
depressants and can cause more respiratory depression resulting in reduced

oxygenation and ventilation[.]” Roppolo stated that the standard of care requires

(1) “administration of medications that have been titrated for an appropriate dose

based on the patient’s weight”; and (2) “only mixing drugs in a safe combination to

not cause respiratory compromise which can result in hypoxia (low oxygen levels)

and retention of carbon dioxide (causing respiratory acidosis) which may lead to

cardiopulmonary arrest.”

Fourth, Roppolo opined that hospital staff delayed providing first aid and

resuscitative efforts to Jackson after he became unresponsive with shallow breathing

and a faint pulse. The medical records contain no documentation that staff took any

action for two minutes “until he was in full cardiopulmonary arrest.” During this

time, hospital staff did not obtain Jackson’s vital signs, check his oxygen saturation

levels, call 911, or obtain a crash cart. There is no indication “that anything was

being done for his abnormal breathing such as ensuring he had a patent airway,

supplementing his breathing with a bag-valve-mask or giving him oxygen . . . which

are required by the applicable standard of care.” According to Roppolo, “These basic

life saving interventions could have made a critical difference in the two minutes

before he was in full cardiopulmonary arrest and could have prevented the severe

anoxic (without oxygen) brain injury that has forever changed his life.”

13
In a conclusion paragraph, Dr. Roppolo opined that Jackson was admitted to

Cross Creek Hospital as “a physically healthy man” who was “independently

walking, talking, and eating” and without respiratory distress or prior underlying

cardiac disease. She further opined that:

His cardiopulmonary arrest was a result of a delay in addressing his
agitation, prolonged physical hold, being given an excessive dose of
medication causing respiratory depression, and a delay in medical
attention immediately after the release of his physical hold when he was
found to be unresponsive, breathing very shallow, and had a faint pulse.

Consequently, Jackson “suffered a catastrophic anoxic brain injury and can no

longer communicate, feed himself, walk or perform any activities of daily living.”

Had Cross Creek Hospital followed the standards of care for an agitated patient,

“Jackson would in reasonable probability not have suffered any significant

neurological impairment. His anoxic brain injury is directly attributed to the

deviations from accepted standards of care in April of 2019.”

C. Objections to Expert Report and Motion to Dismiss

The Providers objected to Roppolo’s expert report and moved to dismiss the

claims against them arguing that the report was so inadequate that it amounted to no

report at all. See id. § 74.351(b)(2), (r)(6). They argued that Roppolo inadequately

described the standard of care owed by Cross Creek Hospital, how Cross Creek

Hospital breached the standard of care, and how the breach caused Jackson’s

injuries. Acadia also argued that it was not affiliated with Cross Creek Hospital, and

14
Roppolo’s report did not apply to it. The Providers also requested attorney’s fees

and costs. See id. § 74.351(b)(1). The trial court overruled the objections and denied

the motion to dismiss. This appeal followed.

Sufficiency of Expert Report

In their sole issue on appeal, the Providers contend that the trial court abused

its discretion by overruling their objections to the expert report and denying their

motion to dismiss the suit on the ground that the expert report was inadequate under

the TMLA.

A. Standard of Review and Governing Law

We review a trial court’s ruling regarding the adequacy of an expert report

under the TMLA for an abuse of discretion. Baty v. Futrell, 543 S.W.3d 689, 693

(Tex. 2018); see E.D. ex rel. B.O. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660,

664 (Tex. 2022) (per curiam) (stating that under abuse-of-discretion standard,

“[c]lose calls must go to the trial court”) (quotation omitted). In conducting our

review, we consider only the information within the four corners of the report.

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

A trial court may grant a motion challenging the adequacy of an expert report

“only if it appears to the court, after hearing, that the report does not represent an

objective good faith effort to comply with the [TMLA’s] definition of an expert

report.” Baty, 543 S.W.3d at 693 (quoting TEX. CIV. PRAC. & REM. CODE

15
§ 74.351(l)); see also TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) (defining “expert

report” as report that gives fair summary of expert’s opinions on standard of care,

breach of standard, and causation).

This standard does not require an expert report to marshal all the claimant’s

proof. Baty, 543 S.W.3d at 693; see Bush, 714 S.W.3d at 543 (stating that TMLA

“imposes a modest requirement at this early stage of litigation” to provide fair

summary of expert’s opinions). But the report cannot be conclusory. Baty, 543

S.W.3d at 693. It must discuss the standard of care, breach, and causation with

enough specificity to inform the physician or health care provider of the conduct that

the claimant challenges and to supply the trial court with a basis to conclude that the

claims have merit. Id.

The standard of care consists of what an ordinarily prudent physician or health

care provider would do under the same or similar circumstances. Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). The report

must identify a specific act the physician or health care provider was required to

perform or refrain from performing and explain how the duty was not fulfilled. See

Baty, 543 S.W.3d at 694–95 (holding that report generally stating care should have

been provided “in the proper manner” to avoid injury was conclusory; instead,

adequate report must explain what defendant should have done differently). The

report is inadequate if the standard of care or its ostensible breach can only be

16
inferred from the report. See Palacios, 46 S.W.3d at 880 (reasoning that expert report

which was vague enough to encompass multiple unspecified complaints—closer

monitoring, securer restraint, or something else entirely—was too conclusory and

thus inadequate).

With respect to proximate causation, an expert report must identify “how and

why” a breach of the standard of care caused the injury, harm, or damages by

explaining the basis for the expert’s statements and linking her conclusions to

specific acts. E.D. ex rel. B.O., 644 S.W.3d at 664. The report need only explain

how, as a factual matter, the claimant will prove causation. Id. The credibility or

believability of the expert’s opinion is not relevant to the question of whether the

report is adequate. Id.

Talismanic words and phrases are not required. Baty, 543 S.W.3d at 693. An

expert report need not use legal terminology such as “proximate cause,”

“foreseeability,” or “cause in fact.” Columbia Valley Healthcare Sys., L.P. v.

Zamarripa, 526 S.W.3d 453, 460 (Tex. 2017). But the report must explain, factually,

how the claimant will prove that the physician or health care provider proximately

caused the injury, harm, or damages. Id.

In evaluating the adequacy of an expert report, we read the report as a whole.

E.D. ex rel. B.O., 644 S.W.3d at 664. The report can be informal. Palacios, 46

S.W.3d at 879. The information in the report need not satisfy evidentiary

17
requirements that will apply on summary judgment or at trial. Id.; see E.D. ex rel.

B.O., 644 S.W.3d at 667 (reiterating that adequacy of report is not based on

evidentiary standard and that expert report need not litigate merits as prerequisite to

suit).

B. Analysis

The Providers maintain that the trial court erred by finding the expert report

adequate because the report did not demonstrate the applicable standard of care, how

the Providers breached the standard of care, and how the breach of the standard of

care caused Jackson’s injuries. Specifically, they acknowledge that Dr. Roppolo

criticized the amount of time it took to initially treat Jackson for severe agitation, the

physical restraint used on him, the medication administered to him, and the delay in

providing first aid after he became unresponsive.

The Providers argue, however, that the amount of time it took to initially treat

Jackson is directed at jail officials rather than Cross Creek Hospital. They also argue

that Roppolo did not state the length of time it was reasonable to use physical

restraints or why the method of restraint fell below the standard of care. They also

argue that the report indicates that the amount of haloperidol administered to Jackson

was within the standard of care, and it does not explain what Cross Creek Hospital

should have done when presented with a physician’s medication order that fell

within the standard of care. Finally, they argue that Roppolo does not state what

18
would have been a reasonable delay in providing first aid to Jackson after he became

unresponsive. In addition to inadequately describing the standard of care and breach,

the Providers argue that the expert report also does not explain how or why each act

or omission caused Jackson’s cardiopulmonary arrest and subsequent brain injury.

Thus, they contend that Roppolo’s opinions on the standard of care, breach, and

causation are conclusory and present analytical gaps that render the expert report

inadequate.

We disagree with the Providers’ position that the report is inadequate.

The expert report spans thirteen pages (excluding Roppolo’s seventeen-page

curriculum vitae), and it is broken into separate sections containing her education

and experience, background information about Jackson from his medical records,

and opinions concerning the standard of care, deviations from the standard of care,

and conclusions. The Providers’ arguments simplify and mischaracterize the

opinions contained within the report. See TEX. CIV. PRAC. & REM. CODE § 74.351(l)

(providing that trial court may grant motion to dismiss suit based on inadequacy of

expert report “only if it appears to the court, after hearing, that the report does not

represent an objective good faith effort to comply with the definition of an expert

report”).

With respect to the applicable standard of care and its breach, Roppolo opined

that BETA standards apply to the hospital’s treatment of Jackson. In discussing the

19
standard, Roppolo addressed four acts or omissions by Cross Creek Hospital staff:

(1) the delay in addressing Jackson’s agitation; (2) placing him in a prolonged

physical hold; (3) administering an excessive dose and improper combination of

medication; and (4) delaying medical attention immediately after releasing Jackson

from physical hold when he was unresponsive, was breathing shallowly, and had a

faint pulse.

Regarding the delay in addressing Jackson’s agitation, the expert report stated

that “Jackson was clearly psychotic and in an agitated state for at least two days”

and that “[n]othing was done to address Jackson’s severe agitation other than de-

escalation until he was at CCH two days later . . . .” We agree with the Providers

that the expert report attributes this delay to the jail rather than to Cross Creek

Hospital. Nevertheless, “an expert report that adequately addresses at least one

pleaded liability theory satisfies the statutory requirements [of the TMLA], and the

trial court must not dismiss in such a case.” Certified EMS, Inc. v. Potts, 392 S.W.3d

625, 632 (Tex. 2013). “A report need not cover every alleged liability theory to make

the defendant aware of the conduct that is at issue.” Id. at 630. Thus, we consider

whether the report adequately addressed other theories of liability.

Regarding physical restraint, the expert report opined that Cross Creek

Hospital staff restrained Jackson for too long and did not medicate him soon enough.

The report concedes that physical restraint can be part of a proper standard of care

20
when combined with prompt medication to reduce the level of agitation. But

Roppolo opined that Cross Creek Hospital violated this standard of care by

restraining Jackson for eleven minutes before administering any medication.

Moreover, Jackson was “completely limp, unresponsive, had shallow breathing and

a faint pulse,” and he “immediately” went into “full cardiopulmonary arrest two

minutes later.” Roppolo stated that it should have been evident that his level of

agitation had decreased during “a period of time” after he was medicated but before

he was released from physical restraint. Additionally, he was physically restrained

in a prone position. Roppolo opined that “[t]he physical hold and being in a prone

position both reduce an individual’s ability to breathe effectively[.]” She concluded

that the use of physical restraints in a prone position increased his metabolic acidosis

and “worsened his acidotic state as it prevented him from using his breathing to

compensate for his metabolic acidosis,” resulting in Jackson’s cardiopulmonary

arrest and “catastrophic anoxic brain injury[.]”

The Providers argue that the physical restraint opinions in the expert report

are inadequate because Roppolo does not indicate how long physical restraints

reasonably can be used, why the method of restraint fell below the standard of care,

and how and why the physical restraint injured Jackson. This argument lacks merit.

True, Roppolo did not state, for example, that it would have been proper to restrain

Jackson for only eight minutes. But she did opine that there was a period of time

21
after medication was administered to Jackson and before he became limp and

unresponsive that the medication would have reduced his level of agitation such that

physical restraints were no longer necessary and should have been discontinued. She

further opined that the physical restraints and placing Jackson in a prone position

increased his acidosis and in turn reduced his ability to breathe which led to

cardiopulmonary arrest and subsequent brain injury.

Moreover, Roppolo stated that the lengthy use of physical restraints in

addition to improper medication fell below the standard of care and caused Jackson’s

injuries. She stated that the standard of care for treatment of an agitated patient

permitted administering haloperidol, an antipsychotic medication, in combination

with a sedative. But she stated that the standard requires a dosage of 5 mg and a

maximum dosage of 10 mg for a larger person. She noted that medical records

indicated Jackson weighed 169 pounds and was 5’8” tall, which is the profile of an

“average size male.” The standard of care therefore required that hospital staff

administer only 5 mg to Jackson, but staff instead administered 10 mg.

Additionally, Roppolo opined that the combination of medication

administered to Jackson fell below the standard of care. Cross Creek Hospital staff

combined lorazepam and diphenhydramine with haloperidol, which “is not

necessary and only increases and prolongs [Jackson’s] sedation and does not help to

reduce his agitation symptoms.” Lorazepam and diphenhydramine “are both CNS

22
depressants and can cause more respiratory depression resulting in reduced

oxygenation and ventilation[.]” Roppolo stated that “the standard of care requires

only mixing drugs in a safe combination to not cause respiratory compromise which

can result in hypoxia (low oxygen levels) and retention of carbon dioxide (causing

respiratory acidosis) which may lead to cardiopulmonary arrest.” Roppolo opined

that the use of physical restraints and “being given an excessive dose of medication

causing respiratory depression” contributed to Jackson’s “catastrophic anoxic brain

injury.”

The Providers argue that the 10 mg of haloperidol administered to Jackson

was within the standard of care as stated in Roppolo’s report. This argument

mischaracterizes the report. Roppolo stated that a 5 mg dose of haloperidol is within

the standard of care for an “average size male” like Jackson, and 10 mg is the

maximum dose for a larger patient. Thus, the report did not conclude that

administering 10 mg of haloperidol to Jackson was within the standard of care.

The report also adequately explained how and why the physical restraints and

administration of medication caused Jackson’s injury. Individually and combined,

these actions reduced Jackson’s ability to breathe which directly led to his immediate

cardiopulmonary arrest and subsequent brain injury. Within minutes of

administering the medication and while in physical restraint, Jackson became

unresponsive and quit breathing for several minutes.

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This leads to the final area of Roppolo’s opinion: Cross Creek Hospital

delayed providing first aid to Jackson when he became unresponsive. Roppolo noted

that the medical records contain no documentation that any first aid was provided to

Jackson for two minutes after he became unresponsive and went into full

cardiopulmonary arrest. There is no indication that hospital staff obtained Jackson’s

vital signs, checked his oxygen saturation levels, called 911, or obtained a crash cart

during this two-minute period. There is also no indication that hospital staff took any

action to help Jackson’s abnormal airway. These “basic life saving interventions

could have made a critical difference” during these two minutes and prevented his

“severe anoxic (without oxygen) brain injury[.]” Each of these actions—physically

restraining Jackson for too long, administering an excessive dosage of medication in

an improper combination, and delaying first aid when he became unresponsive—

alone and combined reduced Jackson’s ability to breathe and caused his

“catastrophic anoxic brain injury.” Roppolo concluded that if the hospital had taken

these actions, “Jackson would in reasonable probability not have suffered any

significant neurological impairment.”

These opinions are not conclusory and do not leave analytical gaps. The expert

report provides sufficient specificity to inform Cross Creek Hospital of the conduct

challenged by Jackson’s family and to supply the trial court with a basis to conclude

that the claim has merit. See Baty, 543 S.W.3d at 693, 694–95. The report further

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identifies how and why the alleged breaches of the standard of care injured Jackson:

that is, the breaches reduced Jackson’s ability to breathe, caused him to become

unresponsive and quit breathing, and directly led to cardiopulmonary arrest and

severe anoxic brain injury leaving him in a permanent vegetative state. We therefore

conclude that the expert report “provides a fair summary of the expert’s opinions”

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

TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6).

We address one final contention that the Providers first briefed in their reply

brief. They argue that the expert report does not address any action by Acadia, and

therefore the trial court abused its discretion by not dismissing the claims Jackson’s

family brought against Acadia. Whether this argument is properly before us is an

open question because the opening brief did not present argument on this point. See

McAlester Fuel Co. v. Smith Int’l, Inc., 257 S.W.3d 732, 737 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied) (stating that issue raised for first time in reply brief is

ordinarily waived). Nonetheless, we hold that the trial court acted permissibly in

implicitly determining that the report’s references to Cross Creek Hospital applied

to Acadia. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex. 2008)

(per curiam) (“When a party’s alleged health care liability is purely vicarious, a

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report that adequately implicates the actions of that party’s agents or employees is

sufficient.”).

We hold that the trial court did not abuse its discretion by overruling the

Providers’ objections to the expert report and denying the motion to dismiss

challenging the adequacy of the expert report. We overrule the Providers’ sole issue.

Conclusion

We affirm the trial court’s order overruling the Providers’ objections to the

expert report and motion to dismiss the lawsuit.

David Gunn
Justice

Panel consists of Justices Guerra, Gunn, and Dokupil.

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