5th COA--Taylor v. Fossett; Expert Report must provide factual basis for trial court to infer causation

Thanks to Jenny Andrews of Wallach & Andrews for this summary.

The Dallas court of appeals issued an opinion in Taylor v. Fossett, 2010 WL 3328502 on August 25 holding that when an expert report can only express causation in terms of possibility and recites no facts supporting a causal nexus, the report is fatally deficient.

The plaintiff developed a postoperative C-section wound infection and claimed the physician failed to diagnose and treat it timely, causing her to have several revisions, a multi-week stay, a large scar and long term pain and suffering. The plaintiff's Chapter 74 expert (Adam Levine, M.D.) stated that if Dr. Taylor had re-evaluated her no later than 48 hours after his first check-up, one or more of the revisions "might" have been avoided and her hospital stay reduced. The trial court denied the second motion to dismiss (after agreeing that the first report was deficient in causation and allowing a 30 day period to cure), but the court of appeals held that the report was still deficient.

It found that the plaintiff was actually admitted to the hospital within 48 hours of the doctor's first check up, and with that circumstance, found no factual basis in Levine's report which explained why, if the plaintiff was actually seen and admitted to the hospital, regardless by whom, she could have avoided a longer hospital stay, could have avoided two surgeries and her scar would have been less unsightly.

Levine did not specify "what" exactly would have been minimized in this plaintiff's circumstances, and he certainly did not specify that any of her complications would have been absolutely avoided.

"Dr. Levine's report left the trial court to infer that the alleged delay in diagnosis and treatment proximately caused the additional surgery, pain and scarring without actually providing a factual basis for the trial court to so infer."

See the opinion at Taylor v. Fossett.

5th COA--Turner v. Franklin; Applying the Emergency Medical Care Standard

This summary provided by Mike Wallach of Wallach & Andrews.

On August 13, 2010, the Dallas Court of Appeals issued an opinion making three important holdings regarding the emergency medical care standard set forth in section 74.153 of the Civil Practice and Remedies Code:

• The emergency medical care standard applies in ER cases even where the diagnosis made is a non-emergent condition;
• 
  
  The willful and wanton standard in the law means "gross negligence"; and
• 
  
  Summary Judgment is an available remedy to deny claims of gross negligence in this context.

Facts of the CaseThe case involves a 14-year old boy who presented at the ER with testicular pain. The symptoms could have been testicular torsion, which is an emergency, or epididiymitis, which is not. The doctors incorrectly diagnosed the boy with epididiymitis and sent him home with antibiotics and pain medication. Several days later, the boy was seen by an urologist and diagnosed with torsion. The delay in treatment of the torsion resulted in loss of the testicle.

Emergency Care
The Plaintiffs argued that the willful and wanton standard set forth in section 74.153 did not apply because the defendant doctors diagnosed the boy with a non-emergent condition. After reviewing the statutory definitions of "bona fide emergency services" the court concluded that the section must cover all emergency treatment regardless of the ultimate diagnosis. The Court explained this conclusion because (1) the diagnosis itself constitutes medical care covered under the statute, (2) the plaintiff's position would create an incentive for doctors to assume the worst to avoid liability, (3) the plaintiffs asked for the question to be a retrospective determination when the statutory language anticipated a prospective one.

Gross Negligence
The court also determined that "willful and wanton" is the equivalent of gross negligence. The court reached this decision by quoting portions of the House Bill 4 legislative debate in which a senator stated that the standard "is basically a gross negligence standard." The Court also cited other cases in which similar language was held to mean "gross negligence."

Summary Judgment
Finally, the Court rejected the notion that a claim of gross negligence under the statute could not be denied on summary judgment. While the Court explained that, in light of the subjective nature of the elements, "summary judgment usually will be inappropriate," it can be available under certain circumstances. In fact, the Court upheld the summary judgment granted to one of the defendants.

See the opinion at Turner v. Franklin.