Tuesday, August 31, 2010

14th COA--Gannon et al v. Wyche; expert reports

Lamar and Traci Wyche sued multiple health care providers in connection with the care of their premature daughter, Kyla.  They served the expert reports of Harley Rotbart, M.D. and NiKole Armstrong, RN.  The physicians and nurse practitioners named in the suit moved to dismiss on the basis of inadequate expert reports.  The trial court denied the motion and this appeal followed.

On appeal, the COA considered whether Dr. Rotbart could rely on the unsworn statement of Traci Wyche in formulating his opinions.  The statement was a day-by-day description of Kyla's condition.  It was signed by Mrs. Wyche and two witnesses.   The Court reviewed the report of Dr. Rotbart and concluded that Dr. Rotbart's reliance on the statement did not render his opinions conclusory or insufficient.  The COA noted the following:
  • An expert report does not have to meet the same requirements as evidence offered in a summary judgment proceeding.
  • The credibility and weight to be given the facts supporting the expert's opinions is an issue for trial. 
In their second issue, the nurse practitioners argued that the expert reports were insufficient as to causation.  The COA agreed with this point.  Dr. Rotbart's report focused solely on the standards of care, breaches, and casuation of the physicians.  There was no discussion of causation as to the nurse practitioners.  The Court then refused to remand the case for dismissal, stating that this was a deficient report, not a "no report."  The case was remanded for consideration of Plaintiff's request for a 30-day extension of time to cure the deficiencies in the reports.

See the opinion at Gannon v. Wyche.

Friday, August 27, 2010

SC--Garcia v. Gomez; Attorneys Fee when No Expert Report is Served

Thanks to David Walsh with Chamblee & Ryan  for this summary.

The principal issue is whether an attorney’s unchallenged testimony as to what he would have charged in a case, without more, legally supports an attorneys-fee sanction for filing a medical-malpractice claim without an expert report. Gomez first sued Garcia for medical malpractice, based on Dr. Garcia’s alleged failure to use a screen during surgery to prevent an embolism. The patient died after an embolism. When an X-ray revealed such a filter had been implanted, Gomez quit pursuing the claim, but did not nonsuit the case and did not file an expert report by the 120-day deadline. Garcia moved for attorneys fees under Texas Civil Practices and Remedies Code section 74.351(b). Garcia’s attorney testified without challenge as to reasonable fees in such a case. The trial court denied the motion for sanctions and the appeals court affirmed.

The Supreme Court HOLDS evidence existed of reasonable fees and that Garcia incurred the cost of those fees and section 74.351(b) mandates attorneys fees be awarded when expert reports are not filed within time limits. Although Garcia’s attorney’s testimony lacked specifics, it was not, under these circumstances, a mere conclusion but some evidence of what a reasonable attorney’s fee might be in this case. The statute limits the award to the lesser of the two, that is, the fee to be awarded is the lesser of a reasonable fee or the fee actually incurred. Testimony about reasonable fees then is not necessarily evidence about the fees incurred.

See the opinion at Garcia v. Gomez.

Wednesday, August 25, 2010

5th COA--Taylor v. Fossett; Expert Report must provide factual basis for trial court to infer causation

Thanks to Jenny Andrews of Wallach & Andrews for this summary.

The Dallas court of appeals issued an opinion in Taylor v. Fossett, 2010 WL 3328502 on August 25 holding that when an expert report can only express causation in terms of possibility and recites no facts supporting a causal nexus, the report is fatally deficient.

The plaintiff developed a postoperative C-section wound infection and claimed the physician failed to diagnose and treat it timely, causing her to have several revisions, a multi-week stay, a large scar and long term pain and suffering. The plaintiff's Chapter 74 expert (Adam Levine, M.D.) stated that if Dr. Taylor had re-evaluated her no later than 48 hours after his first check-up, one or more of the revisions "might" have been avoided and her hospital stay reduced. The trial court denied the second motion to dismiss (after agreeing that the first report was deficient in causation and allowing a 30 day period to cure), but the court of appeals held that the report was still deficient.

It found that the plaintiff was actually admitted to the hospital within 48 hours of the doctor's first check up, and with that circumstance, found no factual basis in Levine's report which explained why, if the plaintiff was actually seen and admitted to the hospital, regardless by whom, she could have avoided a longer hospital stay, could have avoided two surgeries and her scar would have been less unsightly.

Levine did not specify "what" exactly would have been minimized in this plaintiff's circumstances, and he certainly did not specify that any of her complications would have been absolutely avoided.

"Dr. Levine's report left the trial court to infer that the alleged delay in diagnosis and treatment proximately caused the additional surgery, pain and scarring without actually providing a factual basis for the trial court to so infer."

See the opinion at Taylor v. Fossett.

Thursday, August 19, 2010

13th COA--Christus Spohn Hospital et al v. Lackey; Expert Reports in Survival and Wrongful Death Action

Thanks for Bruce Anderson of Brin & Brin in San Antonio for this case summary.

In Christus Spohn Health System Corporation, et al v Lackey, et al, the court held that the expert reports were adequate for the survival action, but not for the wrongful death action.  They sent the case back to dismiss the wrongful death cause of action (a 30 day extension had already been given). 

This is NOT the law in the 4th Court of Appeals.  They believe that if the report is sufficient as to any part of plaintiff’s case, the motion to dismiss must be overruled.  This is a conflict that the Supreme Court will have to take on eventually. 

Friday, August 13, 2010

5th COA--Turner v. Franklin; Applying the Emergency Medical Care Standard

This summary provided by Mike Wallach of Wallach & Andrews.

On August 13, 2010, the Dallas Court of Appeals issued an opinion making three important holdings regarding the emergency medical care standard set forth in section 74.153 of the Civil Practice and Remedies Code:

  • The emergency medical care standard applies in ER cases even where the diagnosis made is a non-emergent condition;

  • The willful and wanton standard in the law means "gross negligence"; and

  • Summary Judgment is an available remedy to deny claims of gross negligence in this context.
Facts of the CaseThe case involves a 14-year old boy who presented at the ER with testicular pain. The symptoms could have been testicular torsion, which is an emergency, or epididiymitis, which is not. The doctors incorrectly diagnosed the boy with epididiymitis and sent him home with antibiotics and pain medication. Several days later, the boy was seen by an urologist and diagnosed with torsion. The delay in treatment of the torsion resulted in loss of the testicle.

Emergency Care
The Plaintiffs argued that the willful and wanton standard set forth in section 74.153 did not apply because the defendant doctors diagnosed the boy with a non-emergent condition. After reviewing the statutory definitions of "bona fide emergency services" the court concluded that the section must cover all emergency treatment regardless of the ultimate diagnosis. The Court explained this conclusion because (1) the diagnosis itself constitutes medical care covered under the statute, (2) the plaintiff's position would create an incentive for doctors to assume the worst to avoid liability, (3) the plaintiffs asked for the question to be a retrospective determination when the statutory language anticipated a prospective one.

Gross Negligence
The court also determined that "willful and wanton" is the equivalent of gross negligence. The court reached this decision by quoting portions of the House Bill 4 legislative debate in which a senator stated that the standard "is basically a gross negligence standard." The Court also cited other cases in which similar language was held to mean "gross negligence."

Summary Judgment
Finally, the Court rejected the notion that a claim of gross negligence under the statute could not be denied on summary judgment. While the Court explained that, in light of the subjective nature of the elements, "summary judgment usually will be inappropriate," it can be available under certain circumstances. In fact, the Court upheld the summary judgment granted to one of the defendants.

See the opinion at Turner v. Franklin.

Thursday, August 5, 2010

13th COA--Loaisiga v. Cerda; expert reports

Plaintiffs Cerda and Velez filed a health care liability against Dr. Loaisiga and his PA alleging sexual assault during physical examinations.  Plaintiffs denied that these were health care liability claims, but "out of an abundance of caution," they timely filed the expert report of a physician.  Dr. Loaisiga and his PA filed objections to the report, which were overruled by the trial court.  Dr. Loaisiga and his PA appealed.

On appeal, the COA agreed that these claims were not health care liability claims.   The Court pointed out that this was not a case where the physician's conduct could feasibly be explained as part of the rendition of health care services or treatment.   Because no expert report was required, the trial court was correct to deny the motion to dismiss.

As to Dr. Loaisiga's PA, the appellate court referred to Plaintiff's Petition and noted that no allegation of medical negligence were made against the PA.  As a result, no expert report was required.

See the opinion at Loaisiga v. Cerda et al.