The El Paso Court of Appeals has returned a case to the trial court for erroneously overruling a home health care provider’s objections to Plaintiffs’ expert reports.
AOC TX, LLC d/b/a Angels of Care Pediatric Home Health v. Naomi Landeros and Carlos Silva, Individually and as Next Fried of O.S., Deceased Minor (No. 08-25-00213-CV; January 29, 2026) arose from the death of a one-year-old child born with a congenital heart defect. While under the care of AOC, a home health care provider, the child went into respiratory and cardiac arrest when the registered nurse employed by AOC was unable to insert a breathing tube. Plaintiff filed a health care liability claim asserting negligence and gross negligence. She served expert reports from a registered nurse and a physician. AOC objected to these reports and moved to strike, attacking their qualifications and deficiencies in the report as to breach and causation. Plaintiff responded and requested a 30-day extension to cure any deficiencies. The trial court overruled AOC’s objections. AOC appealed.
In an opinion by Justice Soto, the court of appeals reversed and remanded. AOC argued that the trial court abused its discretion by overruling its objections and denying its motions to strike the expert reports. As to the registered nurse’s report, AOC alleged that she was unqualified because her report and CV “failed to establish [she] was practicing health care in a field of practice that involves the same type of care that was provided to [decedent],” including “tracheostomy tube removal and timely tracheostomy tube replacement.” Although, as Plaintiff asserted, the nurse had 20 years of nursing experience, the court found little in her CV or report to “demonstrate that she is qualified to offer opinions on whether the standard of care was breached for a home health nurse providing tracheostomy care,” or even whether she had ever performed tracheostomy care. Additionally, although § 74.402, CRPC, permits the trial court to depart from the statute’s expert qualifications for good cause, the trial court’s order didn’t indicate that “it was departing from the statutory criteria nor stated any reason for doing so.”
Turning to the physician’s report, AOC contended that he was unqualified because he retired in 2019 and “was not practicing medicine either at the time the claim arose or at the time he gave his opinion,” as required by § 74.402. Plaintiff stated that she “genuinely believed” that Dr. Bull was still practicing, but in any event he was “very familiar with [tracheostomy management] through his training and experience.” She argued further that the physician didn’t need to be a nurse to be qualified to opine on nursing standards of care for a nurse performing routine trach care. The court rejected this reasoning and held that since the physician retired before Plaintiff’s claim arose, he wasn’t qualified under the statute.
Because neither expert met the statutory requirements, the court reversed the trial court’s order and remanded for further consideration of Plaintiff’s request for 30-day extension to remedy any deficiencies.
TCJL Legal Intern Satchel Williams researched and prepared the first draft of this article.
