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.

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.