1st COA--Mettauer v. Noble et al., objections to expert report

In this wrongful death case, Dr. Mettauer objected to the timely-filed expert report of Dr. Joseph Carey.  Dr. Mettauer claimed that Dr. Carey was not a qualified expert.  He claimed that because Dr. Carey did not perform thoracoscopic cardiac ablation, the procedure at issue in the case, he is not qualified as an expert. Dr. Mettauer also claimed that the Dr. Carey based his conclusions on assumptions or mistakes and did not provide the necessary causal facts to link Dr. Mettauer's procedure and the death.  After the initial hearing, Dr. Carey amended his report, but Dr. Mettauer lodged the same objections.  The objections were overruled and this appeal followed.

Dr. Mettauer's first challenge to Dr. Carey's expert report centered on misstatements and factual errors in the report.  In support of his position, Dr. Mettauer's counsel showed the trial court additional medical records, a PowerPoint presentation on the use of the surgical system, and Dr. Mettauer's answers to interrogatories.  Dr. Mettauer argued that the trial court should ave been allowed to consider this evidence and to take judicial notice of specific medical facts.  The appellate court denied this challenge, holding

• The appellate court may not engage in a review of the documents not relied upon by the expert.
• The trial court's role is that of a gatekeeper, not a factfinder.
• Extraneous information, which was not relied upon by an expert in making his determinations and which does not appear in the report, may not be reviewed in determining the sufficiency of an expert report.

The trial court then considered the challenge to Dr. Carey's qualifications.  Dr. Carey stated in his report that although he had not performed a  thoracoscpic cardiac ablation, he had done thorascopic procedures and he had done open cardiac ablations.  The appellate court held that this was sufficient to show that Dr. Carey had knowledge of the accepted standards of care for a  thoracoscpic cardiac ablation.

Plaintiffs sought sanctions against Dr. Mettauer for filing a frivolous appeal.  The Court noted that Dr. Mettauer's arguments regarding extraneous information were contrary to overwhelming weigh of authority.  However, it noted that his reasoning was based on prior case law (Baptist Hospitals of Southeast Texas v. Carter, 2008 WL 2917109 at *3, Tex. App.--Beaumont 2008, no pet. mem. op.) and that the more recent case that the Court relied on (Christus Health Se. Tex v. Broussard, 306 S.W.3d 934, 939 Tex. App.--Beaumont 2010, no pet.)  was issued only day before the notice of appeal was filed.  The Court did not award sanctions.

See the opinion at Mettauer v. Noble. 

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.

4th COA; Thomas v. Clayton; no trial expert; res ipsa loquitur

The San Antonio COA affirmed the trial court's grant of Dr. Clayton's no-evidence motion for summary judgment.   During his deposition, Plaintiff's expert recanted his criticisms of Dr. Clayton, leaving Plaintiffs without an expert.  With trial less than thirty days away, Plaintiffs filed a motion asking the court for more time to secure an additional expert. Dr. Clayton then filed a motion seeking leave to file a no-evidence motion for summary judgment.  The Court denied Plaintiff's motion, allowed the MSJ, and ultimately granted the MSJ.

On appeal, Plaintiffs argued that the court abused its discretion in denying their motion for additional time to get a new expert.  The appellate court reviewed the decision under the abuse of discretion standard.  The COA noted that the case had been on file for approximately twenty-one months, that the DCO had been in place for seven months, and that the expert had been designated at least three months prior to his deposition.  They pointed out that Plaintiffs did not provide evidence of their due diligence in securing the testimony of the expert who ultimately changed his opinions. 

Additionally, the Court did not agree with Plaintiff's argument that the extension of time should have been considered under the Chapter 74 "one-time extension" for curing a deficient expert report. 

Plaintiffs then argued that res ipsa loquitur applied to their claim, thus negating the need for the expert.  The Court rejected this argument, holding the "the performance of a lumbar epidural steroid injection into the lumbar spine with the use of magnetic resonance imaging is clearly not within the common knowledge of a layman."

See the full opinion at Thomas v. Clayton.

10th COA--College Station Medical Center v. Todd; expert reports in a vicarious liability claim

Todd sued College Station Medical Center for injuries sustained in fall while she was a patient at the hospital.  Within the 120-day deadline, she filed the report of Nurse Foster.  CSMC filed objections.  After the 120-day deadline, Todd served two other reports.  At the hearing on CSMC's objections, the Court granted the objections as to direct liability claims against CSMC, but denied them as to vicarious liability claims.

Todd then amended her petition, deleting the direct liability claims, but adding a premises liability claim.  CSMC filed another motion to dismiss, alleging that no expert report had been filed.  At the hearing, the Court again granted the objections as to direct liability claims against CSMC, but denied them as to vicarious liability and premises liability claims.  CSMC appealed this decision.

CSMC argues that because the only timely-filed expert report was that of nurse who is disqualified from offering opinions on causation, dismissal was required.  The Court agreed that the nurse could not address causation.  Her report, standing along, did not constitute an expert report.  Because there was no report as to the direct liability of CSMC, there was no report as to the vicarious liability.

Plaintiff then argued that she did not need a physician-authored report on causation because the causation in this case could be commonly understood by laypeople.  The Court rejected this theory.  The statutory obligation to file a timely expert report remains even if causation is commonly understood. 

The COA then looked at whether the trial court should have dismissed the premises liability claims.  CSMC argued that these claims were an attempt to recast the health care liability claims.  The Court agreed and held that the premises liability allegations were based on a claimed departure of standards of care related to health care, safety, and professional and administrative services directly related to health care.  The Court pointed out that the duty owed by a health care staff is distinct from the duty of ordinary care owed by premises owners to their residents and invitees.

See the opinion at CSMC v. Todd.