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.
No comments:
Post a Comment