George Muns v. Kharvar Dar, MD
CourtTexas Court of Appeals, 11th District (Eastland)
Date FiledSeptember 24, 2026
Docket11-25-00225-CV
StatusPublished
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Full Opinion
Opinion filed September 24, 2026
In The
Eleventh Court of Appeals
__________
No. 11-25-00225-CV
__________
GEORGE MUNS, Appellant
V.
KHARVAR DAR, M.D., Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-22-04-0401-CV
MEMORANDUM OPINION
This medical malpractice appeal concerns the sufficiency of the amended
expert report that Appellant, George Muns, 1 filed in the underlying suit. See TEX.
1
As he did in the trial court, Muns is also proceeding pro se on appeal. Although we liberally
construe briefs and other filings that are submitted by pro se parties, we hold pro se litigants to the same
standards as licensed attorneys and require them to comply with all applicable laws and rules of procedure
and evidence. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978); Barrientos v.
Barrientos, 675 S.W.3d 399, 404 n.2 (Tex. App.—Eastland 2023, pet. denied); Aaron v. Fisher, 645 S.W.3d
299, 312 (Tex. App.—Eastland 2022, no pet.).
CIV. PRAC. & REM. CODE ANN. § 74.351 (West Supp. 2025). This is our second
occasion to address the issue of the sufficiency of an expert report in this case. In
the first appeal, we concluded that Muns’s Chapter 74 reports were deficient, and
we remanded this cause to the trial court to determine whether Muns was entitled to
a thirty-day extension to cure the deficiencies. See Mourning v. Muns, No. 11-22-
00277-CV, 2024 WL 4557799, at *5–6 (Tex. App.—Eastland Oct. 24, 2024, no pet.)
(mem. op.) (Muns I).
After Muns purportedly cured the report’s deficiencies, he submitted an
amended report prepared by David Henderson, M.D. Appellee, Kharvar Dar, M.D.,
thereafter filed a motion to dismiss the underlying suit contending that the amended
expert report was deficient, which the trial court granted. Muns now appeals from
the trial court’s order of dismissal.
In four issues, Muns argues that the trial court erred when it: (1) failed to apply
the proper good faith standard established in Baty v. Futrell, 543 S.W.3d 689 (Tex.
2018); (2) found that the amended report was insufficient because it clearly informed
Dr. Dar of the conduct called into question; (3) failed to adequately consider the
amended report’s causal relationship analysis; and (4) refused to grant him a second
thirty-day extension to further amend his report. We affirm.
I. Factual Background
On August 24, 2020, Muns was “intubated emergently” at a hospital in Pecos
because of respiratory distress. He was subsequently transferred to Odessa Regional
Medical Center (ORMC) via air flight transport.
Muns later filed the underlying suit against Dr. Dar, ORMC, and others 2
asserting causes of action based on the medical care and treatment that he received
at ORMC. Muns alleged in his amended petition that on August 24, 2020, because
2
The only defendant that is a party to this interlocutory appeal is Dr. Dar, who filed the motion to
dismiss.
2
of inadequate sedation, he woke up in the critical care unit at ORMC while intubated.
He then removed both his orogastric and endotracheal tubes. About ten minutes
later, Jodi Bittick, a nurse at ORMC, telephoned Muns’s wife, his medical power of
attorney, to inform her that Muns was “sitting up in bed with [a] CPAP on and [was]
grabbing at [the] mask, secondary to residual medication in his system, but [was]
stable.” However, there is no record that Bittick attempted to obtain consent for
Muns to be reintubated.
Several minutes later, Muns was reintubated. Muns claimed that, at the time,
“[n]o emergency existed and no diagnostic procedures were performed to support
the procedure.” He alleged that, instead, the medical staff decided that he should be
reintubated because “the providers did not want to have to provide the extra care
needed” to prevent him from removing his CPAP mask.
Muns further alleged that the following morning, he awoke, restrained, while
two nurses performed an IV infusion, which caused him to experience severe
burning pain. He claims that he attempted to pull his arm away and began trying to
communicate with the staff by using hand gestures. In response, charge nurse
Michael Gonzales allegedly told Muns that he should “[l]ay back and shut up.” As
Muns continued to gesture, Gonzales allegedly stated that Muns “lost [his] rights”
when he removed his intubations and reiterated that Muns would not be released.
Minutes into the procedure, Muns claims that he lost control of his gag reflex and
vomited into the tubes that were placed in his mouth. The ORMC staff allegedly
began “scrambling” to clear his airways while he continued to struggle against his
restraints.
According to Muns, Dr. Dar appeared in the room approximately ten minutes
later. Standing near Muns’s bedside, Dr. Dar allegedly berated Muns, and repeatedly
called him an “a-----e.” Muns asserted that he then feared for his life and began
crying. In response, Dr. Dar allegedly told Muns:
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Ok a**hole, you are going to do exactly what I say a**hole and if you are an
a**hole like you were yesterday, I’m going to intubate you, sedate you, and
place you on a ventilator for 2 weeks.
After Dr. Dar left the room, Muns penned a note asking whose “bright idea” was it
to “leave [him] un-sedated,” and that it was “[n]ot [f]unny” to “intubate [him] [and]
paralyze [him] for [two] weeks.” Following these events, Muns was extubated and
released from ORMC against medical advice.
II. Analysis
We consider Muns’s first three issues together because they all relate to the
sufficiency of an expert report under Chapter 74 and whether the trial court abused
its discretion when it found that the amended report is insufficient.
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss a health care liability
claim for an abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d
219, 223 (Tex. 2018) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc. v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Daughtery v. Schiessler, 229 S.W.3d
773, 774 (Tex. App.—Eastland 2007, no pet.). A trial court abuses its discretion if
it acts without reference to any guiding rules or principles or acts in an arbitrary or
unreasonable manner. Daughtery, 229 S.W.3d at 774 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)). In analyzing a Chapter 74
expert report under this standard, we consider only the information contained within
the four corners of the report. Abshire, 563 S.W.3d at 223. In doing so, we defer to
the trial court’s factual determinations if supported by the evidence but review its
legal determinations de novo. Van Ness v. ETMC First Physicians, 461 S.W.3d 140,
142 (Tex. 2015) (per curiam).
B. Good Faith Standard under Chapter 74
Chapter 74 provides that a “[trial] court shall grant a motion challenging the
adequacy of an expert report only if it appears to the court, after a hearing, that the
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report does not represent an objective good faith effort to comply with the definition
of an expert report.” CIV. PRAC. & REM. § 74.351(l). An “[e]xpert report” is defined
as:
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.
CIV. PRAC. & REM. § 74.351(r)(6). An expert report demonstrates a “good faith
effort” when it (1) informs the defendant of the specific conduct that the plaintiff has
called into question, and (2) provides a basis for the trial court to conclude that the
claims have merit. Bush v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 714
S.W.3d 536, 543 (Tex. 2024) (citing Baty, 543 S.W.3d at 693–94); Abshire, 563
S.W.3d at 223. “At this threshold stage of the case, the adequacy of an expert report
is measured by a ‘lenient standard.’” Bush, 714 S.W.3d at 543 (quoting Scoresby v.
Santillan, 346 S.W.3d 546, 549 (Tex. 2011)). However, when evaluating the
sufficiency of an expert report, “close calls must go to the trial court.” Walker v.
Baptist St. Anthony’s Hosp., 703 S.W.3d 339, 343 (Tex. 2024) (quoting Larson v.
Downing, 197 S.W.3d 303, 304 (Tex. 2006)).
A report that merely states the expert’s bare conclusions about the basis for
asserting a medical malpractice claim—standard of care, breach, and causation—
will not suffice. Scoresby, 346 S.W.3d at 556; Palacios, 46 S.W.3d at 879; accord
Abshire, 563 S.W.3d at 223. Thus, when a report fails to include information linking
the expert’s conclusions to the alleged breach, the trial court may reasonably
conclude that the report is conclusory. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d
48, 53 (Tex. 2002) (per curiam). Furthermore, “[a]n expert cannot simply opine that
the breach caused the injury[,]” because such a statement would “not give the trial
court any reasonable basis for concluding that the lawsuit has merit.” See Jelinek v.
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Casas, 328 S.W.3d 526, 539 (Tex. 2010). Rather, the expert must “explain, to a
reasonable degree, how and why the breach caused the injury based on the facts
presented.” Id. at 539–40 (emphasis added); see also Columbia Valley Healthcare
Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 461 (Tex. 2017).
To show “how” and “why” the breach caused the injury, the report “must
make a good-faith effort to explain, factually, how proximate cause is going to be
proven.” Zamarripa, 526 S.W.3d at 460. Proximate cause has two components:
(1) foreseeability and (2) cause in fact. Id. To be a “cause in fact” of the injury, “the
act or omission must have been a substantial factor in bringing about the harm, and
absent the act or omission—i.e., but for the act or omission—the harm would not
have occurred.” Id. (quoting Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex.
2013) (per curiam)).
Muns focuses primarily on the adequacy of the causation analysis in the
amended report—specifically the causal relationship between the failure (1) to
administer an anesthetic other than Propofol, which caused him harm “from the
failed sedation to the non-consensual re-intubation to the alleged mistreatment
during extubation[,]” and (2) to obtain his informed consent.
1. The Use of Propofol
Here, the amended report, in addressing causation, reads in part:
If Dr. Khavar Dar . . . had considered what Ms. Muns . . . had told
multiple providers . . . during the history and physical via telephone,
that [Muns] had a history of issues awakening while Propofol was being
administered, a different medication should have been used to sedate
[Muns]. In doing so, [Muns] would have avoided the episode of
awareness emergence as evidenced by unintentional extubation. As
stated above, there is an increased amount of unintentional extubation
with the use of Propofol in patients.
The supreme court in Wright addressed a report that is similar to the amended report
provided by Muns. In that case, the plaintiff’s expert report stated that “if the x-rays
would have been correctly read and the appropriate medical personnel acted upon
6
those findings then [the plaintiff] would have had the possibility of a better
outcome.” Wright, 79 S.W.3d at 52–53. The plaintiff contended that this statement
established causation because “if the proper medical personnel at [the hospital] had
reviewed the x-rays, [the plaintiff] would have had a chance of diagnosis and
treatment of her foot fracture.” Id. at 53. However, the court held that the trial court
did not abuse its discretion when it found that the report was insufficient and not a
good faith effort to comply with the statute. Id.
Applying the well-established standard, we conclude that the trial court did
not abuse its discretion when it determined that the amended report was not a good
faith effort to address Muns’s claim that the use of Propofol caused his injuries. Like
the report in Wright, Dr. Henderson’s amended report merely opined that had the
proper medication been given, Muns would not have sustained any injuries.
However, and importantly, it does not explain how this omission caused Muns’s
alleged injuries. See Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 860 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (finding an expert’s causation analysis was
conclusory when the report “[did] not state with any specificity how [the provider’s]
departure from the stated standard of care caused [the injury]” and “provide[d] only
the conclusory statement that the failure to monitor caused [the plaintiff’s] injury”).
Dr. Henderson’s amended report is in stark contrast to the report that was held
to be sufficient in Abshire. In Abshire, the report clearly set forth “how” the
breach—the failure “to document a complete and accurate assessment”—caused the
plaintiff’s paraplegia. Abshire, 563 S.W.3d at 224–25. It further explained, in
factual detail, what would have occurred if the medical providers had complied with
the applicable standard of care and, in doing so, administered the proper treatment.
See id. For example, the report described how (1) the failure to document an accurate
assessment resulted in the delay of obtaining proper imaging and protection of the
spine, and (2) if the proper standard had been followed, the plaintiff “could have
7
been admitted to the hospital on absolute bed rest, imaging studies such as a CT or
MRI of her back ordered, then treatment started to preserved [sic] the integrity of
the spine.” Id.
In this case, unlike the clear causal link in Abshire, there is no link in
Dr. Henderson’s amended report that connects the conclusion—that Propofol should
not have been used—to the alleged injuries Muns sustained because of his self-
extubation. Further, in his brief, Muns states that his expert “is not opining that
[Muns] would not have awakened with the use of a different anesthesia.” Therefore,
we conclude that the trial court did not abuse its discretion when it found this part of
the amended report insufficient.
2. Informed Consent
Dr. Henderson’s amended report continues:
If Dr. Khavar Dar, MD discussed consent with Mrs. Muns, POA,
informing her of the risk of intubation, to include awakening during the
procedure, and had no information to provide benefits for reintubation,
then consent would not have been given per interview with Mrs. Muns,
due to [Muns’s] history of “fear and awakening during procedures
involving anesthesia.”
When a plaintiff’s cause of action is based on the failure of a medical provider to
“disclose or adequately disclose the risks and hazards involved in the medical care
or surgical procedure rendered[,]” there must be a causal connection showing that
the risks complained of “could have influenced a reasonable person in making a
decision to give or withhold consent.” See CIV. PRAC. & REM. § 74.101 (West 2017)
(emphasis added). Thus, the standard is not whether the plaintiff or someone else
would have consented to treatment had they been adequately informed, but rather
whether a reasonable person would have. See id.; Greenberg v. Gillen, 257 S.W.3d
281, 283 (Tex. App.—Dallas 2008, pet. dism’d).
In Greenberg, the Fifth Court of Appeals analyzed a similar expert report in
an informed consent context. In that case, the report contained no discussion about
8
“whether the alleged undisclosed information would have influenced a reasonable
person in deciding whether to give or withhold consent.” Greenberg, 257 S.W.3d
at 283. Without this, there was no showing that “the alleged negligence in failing to
obtain informed consent caused [the plaintiff’s] injury or damage.” Id. As such, the
court held that the report did not constitute a good faith effort to comply with the
requirements of Chapter 74. Id.
Like the report in Greenberg, Dr. Henderson’s amended report contains no
reference as to whether possessing the requisite information would have influenced
a reasonable person to withhold consent. Instead, his report only references whether
Muns’s wife would have withheld consent. See Sanchez v. Martin, 378 S.W.3d 581,
589–90 (Tex. App.—Dallas 2012, no pet.) (finding a report to be deficient when it
contains no opinions about what a reasonable person “could have been influenced to
decide to give or withhold consent by being informed of the risks or hazards that
were not disclosed”). Given the absence of any discussion or connection as to what
a reasonable person would have done under the circumstances, we conclude that the
amended report’s causation analysis regarding Muns’s informed consent complaint
does not constitute a good faith effort to comply with Chapter 74.
Because the trial court did not abuse its discretion when it found that
Dr. Henderson’s amended report does not satisfy the requirements of Chapter 74, it
did not err when it granted Dr. Dar’s motion to dismiss.
Accordingly, we overrule Muns’s first, second, and third issues.
C. Thirty-Day Extension
Section 74.351(c) provides in relevant part:
If an expert report has not been served within the period specified by
Subsection (a) because elements of the report are found [to be]
deficient, the [trial] court may grant one 30-day extension to the
claimant in order to cure the deficiency.
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CIV. PRAC. & REM. § 74.351(c) (emphasis added). Muns contends that he should be
granted another extension to cure the deficiencies in the amended report. Dr. Dar
argues, and we agree, that Muns is not entitled to a second extension because
Section 74.351 only provides for one.
Despite Muns’s contention, the statute is clear—a claimant is allowed only
“one” thirty-day extension. See id.; MCH Pro. Care v. Zubia, No. 11-19-00338-CV,
2021 WL 4313212, at *8 (Tex. App.—Eastland Sept. 23, 2021, pet. denied) (mem.
op.). While Muns attempts to point to the statute’s legislative history—that the
purpose of the extension is to allow meritorious claims to go forward while screening
frivolous ones—to justify his assertion that he is entitled to an additional extension,
legislative history will not overcome the plain and unambiguous meaning of the
statute. See City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008) (“When
a statute’s language is clear and unambiguous, it is inappropriate to resort to rules of
construction or extrinsic aids to construe the language.”). Thus, we decline to
construe the statute in the manner advanced by Muns.
Accordingly, we overrule Muns’s fourth issue.
III. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
September 24, 2026
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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