14th COA; Beechnut Manor v. Paul

Beechnut Manor, a long-term care institution, appealed the trial court's denial of its motion to dismiss. Paul served an expert report which was challenged. The court granted a thirty-day extension of time to amend the report. A new report was faxed to Beechnut. Beechnut again moved to dismiss, claiming that the new report was untimely and did not cure the prior deficiencies. The trial court denied that motion.

On appeal, the COA noted that the amended report was due thirty-days after the Court's order granting the extension. This would have been April 23, 2010. Paul faxed her report to Beechnut on April 23, 2010 at 6:14 p.m. Under Rule 21a, service by fax that occurs after 5:00 p.m. is considered served the following day. The report was therefore untimely. The trial court had no discretion but to dismiss the claim.

Paul claimed that she did not receive notice of the trial court's order until April 2, 2010, which would have extended the deadline for the new report to May 2. The COA noted that there was no evidence in the record to support this claim. The COA admitted that this was a harsh result, but that it was up to the legislature to determine these deadlines and any grace periods that should be applicable.

See the opinion at Beechnut Manor v. Paul.

14th COA--West Houston Medical Center v. Priester; timeliness of an expert report

When does the clock start for an expert report when plaintiff has filed more than one lawsuit arising from the same incident?



In this interlocutory appeal, the COA considered whether the trial court was required to dismiss the claims against West Houston Medical Center because the plaintiff failed to serve it within 120 days of filing an original petition against a different defendant in a separate suit. 

Plaintiff sued an employee of WHMC in county court for sexual assault and intentional infliction of emotional distress. Counsel for the parties agreed on the record that this was not a health care liability claim and that no report was required.

Subsequently, Plaintiff sued WHMC in district court.  Within 120 days of filing suit, she served three expert reports.  WHMC objected to the timeliness of the reports, claiming they should have been served within 120 days of the suit against the employee. 

The Court rejected WHMC's arguments and held, "The filing of an original petition does not 'start the clock' for the claimant to serve expert reports on health care providers whom the claimant has never named as a party."  The COA also pointed out, "[E]ven when a defendant health care provider has been added to a pending suit by amendment of the petition, courts consistently have held that expert reports as to the claims against that defendant must be filed within 120 days after an amended petition first added that provider to the case." 

See the opinion at WHMC v. Priester.

14th COA--Kapoor v. Klovenski; expert report failed to state qualifications and causation in a failure to diagnose cancer case

The Estate of Margaret Klovenski sued Dr. Kapoor and alleged that he failed to diagnose her cancer.  Plaintiffs filed the expert report of Dr. Julie Graves Moy.   Dr. Kapoor objected and moved to dismiss.  He alleged that Dr. Moy (1) was unqualified; (2) offered only conclusory opinions about causation; and (3) failed to state the standard of care or Dr. Kapoor's breach.

The COA first discussed qualifications and referred to the Broders case.  The COA held, "Where a physician's failure to diagnose is alleged to have harmed a pt, an expert testifying as to causation must be qualified to opine about the effect of a timely diagnosis and treatment on the outcome."  Dr. Moy did not state any experience or credentials to demonstrate that she was qualified to testify about what treatments would have been available with an earlier diagnosis or whether earlier administration of potential treatments would have resulted in a more favorable outcome.  As a result, the COA held that the trial court abused its discretion in overruling Dr. Kapoor's objections. 

The COA also considered Dr. Kapoor's objections to Dr. Moy's statements on the causal link between his failure to diagnose cancer and Ms. Klovenski's death.  The COA noted that in opining on causation, the expert must offer more that a general opinion that timely diagnosis would have led to a better outcome.  In this type of case, the expert must explain how the complained-of harm would not have happened if the injury had been diagnosed in a timely fashion.  Because Dr. Moy failed to connect her conclusion to any specific facts regarding whether this cancer was treatable or how earlier treatment would have changed her prognosis, her report was insufficient. 

The COA remanded the case to the trial court to consider whether to grant Plaintiff a 30-day extension to cure the report.

See the opinion at Kapoor v. Klovenski.

This opinion was released on September 23, 2010.

14th COA--Gannon et al v. Wyche; expert reports

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.

14th COA--UTMB v. Malveaux; Tort Claims Act

The Fourteenth COA heard UTMB's accelerated appeal of the trial court's denial of their plea to jurisdiction. (UTMB had several other points on appeal as well.) This case stemmed from Ms. Malveauz's surgical treatment for breast cancer. UTMB claimed that because Ms. Malveaux's true claims were for lack of informed consent and medical negligence. Plaintiff argued that her claims were for misuse of tangible property, i.e. the physicians had miused equipment in performing her surgery. The trial court sustained all of UTMB's claims.

COA Opinion