Daniel Walker and Kristen Walker v. Baptist St. Anthony's Hospital and Rhodesia Castillo, M.D.

Supreme Court of Texas
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No. 23-0010
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Daniel Walker and Kristen Walker,
Petitioners,

v.

Baptist St. Anthony’s Hospital and Rhodesia Castillo, M.D.,
Respondents

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On Petition for Review from the
Court of Appeals for the Seventh District of Texas
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JUSTICE BLAND, joined by JUSTICE BOYD, concurring.

Honoring our Constitution’s promise of open courts and an
opportunity to be heard, we endeavor to consider every appeal on its
merits. TEX. CONST. art. I § 13; see Sax v. Votteler, 648 S.W.2d 661, 664
(Tex. 1983) (“[Section 13] is, quite plainly, a due process guarantee.”).
We construe briefs liberally, disdain immaterial briefing waiver, and
elevate justice over procedural deficiencies of many stripes. 1 For that

1 E.g., Horton v. Stovall, 591 S.W.3d 567, 570 (Tex. 2019) (“The interests

of justice and fair play demand that cases be decided on the merits when
technical deficiencies in appellate briefs ‘can be easily corrected.’” (quoting Silk
v. Terrill, 898 S.W.2d 764, 766 (Tex. 1995))); Willis v. Donnelly, 199 S.W.3d
reason, when error exists in the reasoning of the court of appeals, a
respondent is entitled to resolution of dispositive unaddressed issues,
either by our Court or on remand. Stanglin v. Keda Dev. Corp., 713
S.W.2d 94, 95 (Tex. 1986), op. on reh’g. “We have the option of
‘(1) examining the points not considered by the court of appeals in order
to determine whether any will support affirmance of that court’s
judgment, or (2) remanding the cause to the court of appeals for it to
pass on those points.’” Id. (quoting Roark v. Allen, 633 S.W.2d 804, 811
(Tex. 1982)).
There is no third way, such as the path the Court takes in this
case: the rejection of two never-considered appellate challenges with no
more explanation than it need not do so “in the interest of judicial
economy.” Cf. Indus. Specialists, LLC v. Blanchard Refin. Co. LLC, 652
S.W.3d 11, 23 (Tex. 2022) (Busby, J., dissenting) (“For many years, this
Court has demonstrated its commitment to the efficient administration
of justice, transparency, and a substance-over-form approach to
procedure. Regrettably, the plurality and concurrence sound a retreat
on all these fronts today, allowing courts of appeals to avoid hearing
permissive appeals at their pleasure and with no explanation so long as
their standard-form denials recite the following pass-phrase: ‘the
petition fails to establish each requirement.’”).
Judicial economy is meaningful; inefficient justice is hardly
justice at all. In reading the Court’s opinion, however, the respondents

262, 270 (Tex. 2006) (“[A] party should not lose its right to appeal based on an
unduly technical application of procedural rules.”); Weeks Marine, Inc. v.
Garza, 371 S.W.3d 157, 162 (Tex. 2012) (construing briefs reasonably and
liberally to avoid the loss of a party’s rights).

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have no assurance that their unconsidered issues—those the court of
appeals did not reach—were afforded any application of the law to the
facts. Such an omission occludes the transparency of our legal system
and disappoints the reasonable expectations of parties seeking redress.
See id. at 28 (citing In re Columbia Med. Ctr. of Las Colinas, Subsidiary,
L.P., 290 S.W.3d 204, 213 (Tex. 2009)).
We may decide how judicial economy is best served. RSL
Funding, LLC v. Newsome, 569 S.W.3d 116, 124 (Tex. 2018) (“When
presented with an issue the court of appeals could have but did not
decide, we may either remand the case or consider the issue ourselves.”).
When the remaining issues are fully briefed and straightforward, as the
issues in this case are, we often address them in the first instance. 2 But

2 See, e.g., Baty v. Futrell, 543 S.W.3d 689, 697 (Tex. 2018) (“Although

the court of appeals did not address the report’s sufficiency as to breach and
causation, the parties argued those issues here, and we will address them in
the interest of judicial economy.”); Pedernal Energy, LLC v. Bruington Eng’g,
Ltd., 536 S.W.3d 487, 495 (Tex. 2017) (“The parties have briefed and argued
the issue here, so in the interest of judicial economy we will address it rather
than remanding to the court of appeals.”); Rusk State Hosp. v. Black, 392
S.W.3d 88, 97 (Tex. 2012) (“The court of appeals did not address the Hospital’s
claim of immunity. Rather than remanding the case to the court of appeals for
it to do so, however, we address the issue in the interest of judicial economy.”).
The Court cites inapposite cases in which the underlying courts of appeal had
discretionary review or decided the issue on the merits, and we held that
decision to contain no reversible error. See Indus. Specialists, 652 S.W.3d at
19 (Tex. 2022) (plurality opinion of Boyd, J.) (“The opinion addressed the only
issue raised and necessary to final disposition of the [permissive] appeal, as
rule 47.1 requires, and advised the parties of the court’s decision to refuse the
appeal and the basic reasons for it, as rule 47.4 requires.”) (internal quotations
and original brackets omitted); Virlar v. Puente, 664 S.W.3d 53, 66 (Tex. 2023)
(declining to discuss an issue further when “the court of appeals thoroughly
reviewed” it); Columbia Valley Healthcare Sys., L.P. v. A.M.A. ex rel. Ramirez,
654 S.W.3d 135, 141 n.3 (Tex. 2022) (the court of appeals’ reasoning presented

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when we elect not to do so, the proper course is to remand the remaining
issues to the court of appeals, which must hand down a written opinion
that addresses any issue raised and necessary to a final disposition.
TEX. R. APP. P. 47.1; see also West v. Robinson, 180 S.W.3d 575, 577 (Tex.
2005) (explaining that “[Rule 47.1] is mandatory, and the courts of
appeals are not at liberty to disregard it”).
I join the court’s opinion regarding causation. I write separately
to address the two issues the court of appeals did not reach, because this
Court neither remands these issues nor addresses them in its opinion.
In addition to the causation challenge that the court of appeals
sustained, the health care respondents present two issues the court of
appeals never reached: (1) the proffering physicians are not qualified to
offer the opinions at the heart of this appeal; and (2) the reports fail to
adequately explain the applicable standard of care and breach for the
hospital nurses. TEX. R. APP. P. 53.4 (a party may request that the Court
consider issues unaddressed in the court of appeals’ opinion). Because
these alternative bases for affirming the court of appeals’ judgment also
lack merit, I concur in the Court’s judgment.
I
The health care respondents urge that Drs. Tappan and Null are
not qualified to proffer opinions on causation sufficient to comply with

no reversible error and further discussion would be unimportant to the
jurisprudence of the State); Regent Care of San Antonio, L.P. v. Detrick, 610
S.W.3d 830, 839 (Tex. 2020) (same). In contrast to these cases, no appellate
court has addressed two issues necessary to the disposition of this appeal.
Proper stewardship of scarce judicial resources cannot be to withhold them
entirely.

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Chapter 74 of the Civil Practice and Remedies Code. TEX. CIV. PRAC. &
REM. CODE § 74.351(a). Our precedent on witness qualification is
spartan and easily understood. See Broders v. Heise, 924 S.W.2d 148
(Tex. 1996). Chapter 74 imports its expert criteria from the Texas Rules
of Evidence. TEX. CIV. PRAC. & REM. CODE. § 74.351(r)(5)(C). The
relevant rule provides:
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. 702.
Not every medical doctor is qualified to testify on every medical
issue. Broders, 924 S.W.2d at 152. The offering party must establish
that the witness has “knowledge, skill, experience, training, or
education” pertaining to the specific issue before the court “which would
qualify the expert to give an opinion on that particular subject.” Id. at
153. However, the inquiry is not myopic. See Larson v. Downing, 197
S.W.3d 303, 305 (Tex. 2006) (explaining that “expert qualifications
should not be too narrowly drawn”).
Relevant here, testimony on the cause of an injury to the brain is
not categorically restricted to neurosurgeons. Broders, 924 S.W.2d at
153. Rather, a trial court must examine whether the witness has
sufficient expertise through education, training, and experience such
that the witness’s opinion in the relevant subject area rises “above mere
speculation to offer genuine assistance to the jury.” Id.

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Ample evidence supports the trial court’s determination that Dr.
Tappan possesses sufficient qualifications to proffer an opinion as to the
cause of the injuries in this case. Dr. Tappan is a licensed physician in
California with an active clinical practice that includes obstetrics and
gynecology. He has experience diagnosing, evaluating, and managing
pregnant patients near delivery, including managing patients with
non-reassuring fetal heart-rate patterns. He states that he is “aware of
the indications and techniques for operative vaginal delivery and
cesarean section and the prevention and management of fetal head
impaction in the maternal pelvis at the time of cesarean delivery.”
The health care respondents dispute whether Dr. Tappan is
qualified to opine on the causes of neurological injuries to newborns. In
doing so, they impermissibly restrict the inquiry at this early stage of
the proceedings, which do not subject an expert’s stated qualifications
to substantive investigation or cross-examination. See id. (“Our holding
does not mean that only a neurosurgeon can testify about the cause in
fact of death from an injury to the brain . . . .”). The injury in this case
allegedly occurred as a result of breaches of the standard of care during
birth. An obstetrician trained in preventing neurological injuries of the
type alleged to have occurred here may have experience in assessing
those injuries, and Dr. Tappan indicates that he has such experience. A
reasonable court could determine that Dr. Tappan’s training and
experience qualify him to offer an opinion as to the cause of the alleged
fetal injury in this case, when combined with Dr. Null’s report.
Dr. Null has experience managing hundreds of patients with
birth asphyxia. His research focused on neonatal respiratory problems.

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He headed several pediatric care units and was the assistant chief of
neonatology at Wilford Hall USAF Medical Center. As Dr. Null had
extensive experience with both newborns and birth asphyxia, his report
sufficiently indicates that he is qualified to proffer an opinion as to the
alleged cause of the injury in this case.
Taking the two reports together, there is no basis to conclude that
the trial court acted in “an arbitrary or unreasonable manner” in
determining Drs. Tappan and Null were sufficiently qualified to testify
on causation. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002); TEX. CIV. PRAC. & REM. CODE § 74.351(i) (explaining that “a
claimant may satisfy any requirement of this section for serving an
expert report by serving reports of separate experts regarding different
physicians or health care providers or regarding different issues arising
from the conduct of a physician or health care provider”).
II
The health care respondents also contend that the expert reports
inadequately address the applicable standard of care and breach of that
standard by the hospital nurses. Chapter 74 requires that expert
reports provide a fair summary of the applicable standard of care. See
TEX. CIV. PRAC. & REM. CODE § 74.351(a), (l), (r)(6). Identifying the
proper standard of care is “critical,” as a breach of duty cannot be
determined “absent specific information about what the defendant
should have done differently.” Am. Transitional Care Ctrs. of Tex., Inc.
v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). The standard focuses on
poor conduct, not poor results. See Baty, 543 S.W.3d at 696 (approving

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a report identifying specific conduct and opining that it fell below the
standard of care).
Dr. Tappan explained with specificity his view as to what the
nurses should have done differently. For example, he states that the
nurses should have used proper monitoring equipment, recorded critical
pressure-change data, properly adjusted oxytocin, and reported
problems to their superiors when they appeared. Dr. Tappan references
a hospital protocol, signed by Dr. Castillo, as part of the basis for these
standards. See Bowie, 79 S.W.3d at 52 (requiring the expert’s opinion to
be contained within the “four corners” of the report). While “a company’s
internal policies alone do not determine the governing standard of care,”
they may be evidence of one. See FFE Transp. Servs., Inc. v. Fulgham,
154 S.W.3d 84, 92 (Tex. 2004) (internal quotation marks omitted); Fence
v. Hospice in the Pines, 4 S.W.3d 476, 481 (Tex. App.—Beaumont 1999,
pet. denied) (“We may also look to Hospice’s internal policies for evidence
regarding the standard of care; however, those policies alone do not
determine the governing standard of care.”).
Nurse Beach’s expert opinion combines with Dr. Tappan’s to
elucidate the standard of care, noting that a reasonably prudent nurse
should “apply a fetal scalp electrode when the fetal heart rate signal was
intermittent,” and that the nurses failed to do so here. She seconded
Dr. Tappan’s assertion that nurses should “proceed up the chain of
command after the attending physician . . . was no longer present at the
hospital while Pitocin was being administered and the fetal heart rate
revealed a non-reassuring pattern.” Read together, the trial court
reasonably could determine that the testimony of Dr. Tappan and Nurse

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Beach sufficiently provided the applicable standard of care and breach
for the hospital nurses. See TEX. CIV. PRAC. & REM. CODE § 74.351(i)
(“Nothing in this section shall be construed to mean that a single expert
must address all liability and causation issues with respect to all
physicians or health care providers or with respect to both liability and
causation issues for a physician or health care provider.”).
* * *
Judicial efficiency is not a proxy for shortcuts—haphazardly
placing issues on appeal into a new category deemed unworthy of an
appellate decision at any level. Having resolved the alternate grounds
necessary to the Court’s disposition, I join the Court’s judgment
remanding the case to the trial court for further proceedings.

Jane N. Bland
Justice

OPINION FILED: December 13, 2024

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