9th COA--Ngo and Annavajjhala v. Lewis; expert reports, analytical gap in expert opinions

The 9th COA considered this appeal of Dr. Ngo and Dr. Annavajjhala's motions to dismiss for failure to serve an adequate expert report.  The case stems from the defendants' treatment of a newborn with Group B Streptococcus (GBS) infection.   On appeal, Dr. Ngo claimed that the trial court erred because Dr. Thach's report failed to explained how the infant's outcome would have changed if she accomplished the tasks identified by Dr. Thach sooner than she actually did.  She claims the report is insufficient because it is conclusory.  The COA agreed.  It held that the report contained analytical gaps with respect to connecting the criticisms about delays in treatment of the cause of the infant's death.  The report did not explain the expert's conclusions with enough specificity to allow the trial court to link the conclusions to the facts. 

Dr. Annavajjhala also argued that Dr. Thach's opinions fail to establish a causal link between her actions and the infant's injuries.  The COA noted, "In cases involving a pre-existing condition that results in the patient's death, an adequate explanation of causation would explain how the delays in the patient's treatment were substantial factors that caused the patient to lose his probability of surviving."   Dr. Thach's report did not address the infant's chances of survival.  Because the report provided an insufficient explanation of causation, it did not meet the requirement of Section 74.351.  The COA remanded the case for dismissal and and award of attorneys' fees and costs to the defendants.

See the opinion at Ngo v. Lewis.