Tuesday, March 29, 2011

Wednesday, March 23, 2011

SC: Turtle Healthcare Group v. Linan; recasting claims

This case considered whether claims based on the failure of a ventilator were subject to the MLA or whether they were ordinary negligence claims. The Court held that all of the claims were subject to the MLA. Because no expert report was provided, the claims were dismissed.

The Court pointed out that "all the Linans' claims are based on the same underlying facts and the Linans' pleadings are essentially that Maria's death was caused by Turtle's negligence in the "operation and/or maintenance of the . . . ventilator and/or its components and accessories." Thus, the claims could not be recast as battery or ordinary negligence claims.
See the opinion at Turtle Healthcare Group v. Linan.

SC: Stockton v. Offenbach; missing defendant and failure to serve expert report

Plaintiff Stockton tried to sue her former obstetrician for injuries incurred during the birth of her son. Dr. Offenbach was allegedly addicted to drugs at the time of the delivery. He lost his medical license in 2001 and presumably left Texas after that time. His whereabouts are unknown. Despite this, Stockton sought to find him in order to file this claim. She was not able to locate him before doing so on June 13, 2007. There was a delay in the trial court's granting her motion for substituted service. Citation was eventually accomplished and Offenbach was directed to answer the suit by April 28, 2008. By this time, the 120-day deadline for filing the expert report had passed.

Offenbach's insurance company hired an attorney to represent him. The attorney moved to dismiss the case because Stockton had not served the expert report within 120-days. Stockton responded that service would have been impossible because Offenbach could not be located and substituted service had not been approved. The trial court agreed that the deadline could not apply and denied the motion to dismiss. On appeal, the COA reviewed the claim de novo and concluded the MLA required dismissal. Stockton then appealed to the Supreme Court.

The Supreme Court first held that de novo was the appropriate standard of review because "whether the statute permits additional time beyond the 120-day deadline or is unconstitutional, as applied, are legal questions."

The Court then considered whether to apply a "due diligence" exception to the 120-day requirement. The Court declined to make a firm ruling on whether this exception is available in the service of expert reports, but instead said, "But even assuming that a due diligence exception applies to service completed after Chapter 74's expert report deadline, we are not persuaded that the evidence here is legally sufficient to raise the issue." It then noted that Stockton knew of the deadline when filing and allowed the 120-days to lapse before getting a ruling on her motion for substituted service. The Court further pointed out Stockton did not appear to inform the trial court of the impending expert report deadline and the need for immediate relief.

Finally, the Court considered whether the expert report deadline violated the Texas Constitution's open courts provision. The Supreme Court agreed with the COA finding that "there was neither evidence that compliance with section 74.351(a) was impossible nor evidence that the statute prevented Stockton from pursuing her claim."

It is important to note that the Court recognized the difficulty that plaintiffs can face in serving the defendant with citation—much less the expert report—within 120 days. The Court stated that although the purpose of the statute was to weed out frivolous claims, "That purpose would not be sacrificed, however, by calculating the expert report deadline from the date the physician or other health care provider becomes a party to the proceeding through service or appearance. Calculating the deadline from that date would also better fit the statute's requirement that the expert report is to be served on 'each party or the party's attorney.'"

See the opinion at Stockton v. Offenbach.

What are your thoughts on the standard suggested by the Court? Have you had experiences whether the defendant could not be served within 120-days? How did you accomplish service of the expert report?

Tuesday, March 22, 2011

SC—Samlowski v. Wooten; Thirty-Day Extensions

In this fractured opinion, the Court considered under what circumstances a trial court might abuse its discretion in denying a thirty-day extension to cure an expert report. In this case, the COA remanded the case back to the trial court for further proceedings. The Supreme Court agreed with the decision, but had no common reason for doing so. Justice Medina summarized the breakdown as, "Three members of the Court essentially agree with the court of appeals' analysis, three members disagree with that analysis and would reverse and render, and three members disagree with the court of appeals' analysis but would nevertheless remand in the interests of justice."

As is the case in almost all challenges to expert reports, the physician challenged the report as deficient as to how the care rendered caused the injury, harm or damages claimed. The trial court granted the motion and did not allow a thirty-day extension of time to cure the deficiency.

On appeal, Wooten claimed that he should have received the thirty-day extension. The COA held that the report was deficient "because it did "not represent a good-faith effort to summarize the causal relationship between Dr. Samlowski's failures to meet the applicable standards of care and Wooten's claimed injury, harm, and damages." But the COA then remanded the case back to the trial court to allow additional time to cure the deficiency, noting that the report was a good-faith attempt to comply with the statute that could be cured with a supplemental report.

On petition for review, Dr. Samlowski argued that the positions taken by the COA were at odds. Either the report was a not a good-faith effort and dismissal was warranted or it was a good-faith effort and a supplemental report should be allowed. It could not be both. He argued that the court of appeals was substituting its judgment for that of the trial court in finding that the report could be easily cured. Wooten argued that the trial court's discretion should be judged by the good faith efforts shown in the deficient report.

Judgment of the Court

The Supreme Court first explained that Section 74.351(c), which governs the thirty-day extension, provides no guidance on how the trial court should exercise its discretion in allowing these distinctions. "Guidance must come instead from the broader purposes of the Texas Medical Liability Act of which section 74.351(c) is a part." The Court looked at the principle of the Medical Liability Act which is to deter frivolous claims and preserve meritorious claims. In order to do this, the trial courts must consider whether the report is capable of being cured within the thirty-day period. "A trial court should therefore grant an extension when a deficient expert report can readily be cured and deny the extension when it cannot."

Justice Medina went on to explain the procedure that the claimant should follow if the report is deemed deficient and no extension is granted:

The claimant must therefore be prepared to cure a deficient expert report whether or not the trial court grants the claimant's motion. When, as in this case, the trial court simultaneously finds the expert report deficient, denies a motion to cure, and dismisses the underlying health care liability claim, the claimant must move the court to reconsider and promptly fix any problems with the report. This should further be done within the statutory, thirty-day period, thereby demonstrating that the report would have been cured had the extension been granted. If this is accomplished and the court refuses to reconsider, the now compliant report will typically establish the trial court's abuse of discretion.

Justice Medina then concedes that the report in this case was described as thorough and well-detailed, implying that a cure was likely possible. He points out that the statute was silent on what should have been done in this case to preserve the parties' rights. As a result, he agreed with remand to the trial court.

Read Justice Medina's opinion at Judgment of the Court


Justice Guzman disagreed with the procedures set forth by Justice Medina. She explained that the abuse of discretion should be judged by the initial report—not the amended report. She holds, "Therefore, as long as a claimant has filed a report (as defined by the statute), the specific deficiencies of a report should not determine whether the trial court should grant an extension. Rather, a trial court should be able to determine, based on the initial report, if a claim warrants an extension—that is, whether a claim could potentially have merit if the report were cured. A report from a qualified health care professional stating a belief that a plaintiff has a claim against a defendant, even though elements of the report are deficient, should be sufficient for a trial court to determine the curability of the report."

Justice Guzman ultimately held that the trial court abused its discretion in denying the motion for an extension to cure the report. She joined the judgment remanding the case to the trial court.

Read Justice Guzman's opinion at Concurrence.

Dissent and Concurrence

Justice Wainwright dissented in part, but concurred in the judgment. He also disagreed with Justice Medina's standard for reviewing extensions to cure expert reports as this procedure would increase time, costs, and undermine the purpose of the expert report requirement—which is to deter frivolous claims. He then argues that the standard of review for expert report challenges should be de novo. The review is based on documents, not assessment of witness testimony or other evidence. De novo review would promote consistency and predictability across the state. Applying de novo review, Justice Wainwright found that the report addressed all of the elements of the statute and that remand to the trial court for consideration of the extension was appropriate.

Read Justice Wainwright's opinion at Dissent and Concurrence.


Justice Johnson and two other justices dissented from the judgment. He noted that the thirty-day extension was to be reviewed under the abuse of discretion standard and pointed out, "From the Legislature's establishing of a deadline for serving a report and directing that the suit shall be dismissed unless the deadline is met or the trial court grants an extension "in order to cure the deficiency," at least three criteria for the granting of an extension of time can be distilled. See TEX. CIV. PRAC. & REM. CODE § 74.351(c) (emphasis added). First, the deficient report must qualify as a report, albeit a deficient one. Second, the deficient report must have been served within the statutorily-specified time limit. Third, the deficient report will be cured during the extension if one is granted."

Because there was no evidence in the record to suggest that the report could have been cured if an extension were granted, the trial court did not abuse its discretion. Justice Johnson also pointed out that nothing prevented Wooten from curing the defects in the report. She did not file a supplemental report and did not seek rehearing of the trial court's ruling. Because she failed to avail herself of procedural measures, there was no basis to overturn the trial court's decision.

See Justice Johnson's opinion at Dissent.  

Bills pertaining to TMA

Jon Porter of Health License Defense has a helpful post on legislation affecting the Texas Medical Board. 

Key Legislation to Follow

Legislative Update

Friday, March 11 was the deadline for Texas legislators to file bills and resolutions.  Two bills of note to medical malpractice attorneys are:

HB 2452 (Zedler). Requires a health care institution owned by the state or a political subdivision of the state to provide written notice of the liability limits applicable to that institution in a health care liability claim; (2) the liability limits that would be applicable to a private institution; and (3) whether the physician or health care provider has liability insurance and the limits of that insurance.

HB 274 (Creighton) and SB 13 (Huffman) Allows the prevailing party to recover litigation costs, including attorney’s fees, travel expenses, fees for two expert witnesses, and court costs. If the claim is determined to be an abusive civil action, the attorney can be jointly and severally liable for the costs.

Monday, March 21, 2011

Overuse of the NICU

In Search of Cuts, Health Officials Question NICU Overuse

This NY Times article on changes to NICU policies and admissions immediately made me think of defending that future case in which a child was not admitted to the NICU when he or she should have been. I found it interesting that even Dr. Frank Mazza—who conceded that NICUs can be overused—would want his own wife and child to be in a hospital with a NICU with "the latest and greatest technology."

What are your thoughts? What problems do you foresee in defending baby cases where the use of NICU is an issue?