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.