When is the Expert Report Due?

Under the prior version of Chapter 74, plaintiffs were required to serve their expert reports within 120-days of filing their claim and defendants had 21 days to object. Two problems arose:

1) What if the report was served with the petition?  Because answers can be due more than 21 days later, with our Monday answer rule, defendants were sometimes required to object to the report before answering the suit.

2)  What if the defendant avoided service?  Plaintiffs were then faced with missing the deadline to serve a report because they had not yet served the defendant.

HB 658 revised CPRC 74.351(a) to address these two situations.

(a)  In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's [the] original answer is [petition was] filed, serve on that [each] party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.  The date for serving the report may be extended by written agreement of the affected parties.  Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the later of the 21st day after the date the report is [it was] served or the 21st day after the date the defendant's answer is filed, failing which all objections are waived.

This bill took effect September 1, 2013.

You should now calendar deadlines as follows:

Petition Served:  ___________
Defendant's Answer filed: ______________
Expert Report Due:  Answer Date + 120 days
Expert Report Served: ____________
Objections Due: Report Date + 21 days or Answer date + 21 days, whichever is later.

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?

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

Concurrence

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.

Dissent

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.  

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.

Petition for Review Granted: Is Laser Hair Removal Health Care?

The Supreme Court has granted the Petition for Review in Ghazali v. Brown, an expert report case from Tarrant County.  In my quick review of the briefs, it appears that Dr. Ghazali challenged the expert report as insufficient as to him because it only discussed the care of a laser hair removal center.  A revised report was then submitted which made a cursory link between Dr. Ghazali and the center.  In response, Brown claims that this is not a health care liability claim and no report was required.  That, of course, begs the question:  If no report was required, why did she file one? 


Click here for a link to Electronic Briefs. 

1st COA--Doctors Hospital v. Hernandez

In this case, Doctors Hospital and Nurse Price challenged the trial court's denial of their motion to dismiss and objections to Plaintiff's expert reports.  This undeniably tragic case arose from the death of Cynthia Hernandez just eight hours after delivering her daughter.  Plaintiffs filed the expert reports of Harold Miller, M.D., an ob-gyn, and Traci McManaman-Bridges, a registered nurse.

Defendants first claimed that Dr. Miller was not qualified to serve as an expert because his experience was all in teaching hospitals, such as Ben Taub Hospital and not in smaller, tertiary care hospitals.  The COA rejected this claim, sating that the relevant inquiry must be guided by CPRC 74.402, which states:

(a) For purposes of this section, "practicing health care" includes:

(1)training health care providers in the same field as the defendant health care provider at an   accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.
(b)In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.

The COA held that Dr. Miller was qualified as he was a board certified ob-gyn in practice since 1967 with extensive practical and teaching experience.  Defendants also claimed that Dr. Miller was not qualified to opine as to the conduct of the nurses.  The COA also rejected this argument.  Dr. Miller stated that he had experienced working with nurses and was familiar with the standard of care for nurses.

In their second point of error, Defendants claimed that Dr. Miller's expert report was insufficient because it contradicted the medical records.  The COA reiterated the rule that only the four corners of the expert report can be considered in a motion to dismiss.  Finally, Defendants claimed that the report was conclusory as to causation.  The COA held that the report sufficiently linked the conclusions to the facts of the case.  The trial court's decision was affirmed.

See the opinion at Doctors Hospital v. Hernandez

Supreme Court hears oral arguments in an expert report case

On Tuesday November 9, 2010, the Supreme Court heard oral arguments in an expert report/no report case.  Below is the summary from Osler McCarthy, the Court's staff attorney for public information.  Click on docket for links to the briefs and procedural history of this case. 

Tyler Scoresby, M.D. v. Catarino Santillan, No. 09-0497 (Docket)

In this appeal from a trial court’s failure to dismiss a health-care liability suit, a principal issue is whether an expert report can be so deficient in addressing the elements of a claim that it constitutes no report at all, requiring dismissal instead of an extension to cure the defects. Santillan sued over alleged mistakes during surgery on a minor son’s nasal tumors that led to bleeding and his partial paralysis. Dr. Scoresby, an ear-nose-throat surgeon, moved to dismiss the claim because Santillan’s expert report, by a neurologist, did not establish a care standard, show how the standard was breached or how the breach caused the son’s injuries. The report also did not include the expert’s credentials. Instead of dismissing the suit, the trial granted a 30-day statutory extension to cure a deficient report. Scoresby appealed that ruling, arguing to the court of appeals, as he does in this Court, that the expert report amounted to no report at all, requiring dismissal. The appeals court dismissed the doctor’s interlocutory appeal, holding that an extension to cure a deficient report could not be reviewed.

My thanks to Don Cruse and the Supreme Court of Texas blog. 

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.

1st COA--Tien v. Alappatt; expert report; disclosure of risks

In this memorandum opinion, the COA held that Tien was required to file an expert report, despite his claim that no report was required because his claim cetnered on disclosure of the risks of a surgical procedure. 

Tien filed suit against Dr. Alappatt, claiming that Dr. Alapapatt should have disclosed the risks of a pan-retinal photocoagulation (PRP) on his eyes.  Tien filed an expert report.  Dr. Alappatt moved to dismiss because the report was insufficient.  The trial court agreed and dismissed the case with prejudice. 

On appeal, Tien did not argue that the report was sufficient; instead, he claimed that he did not need to file a report because of the nature of his claims.  He said that because the Texas Medical Board required certain disclosures that were not made, no expert report was required.  The COA referred to Supreme Court authority that has held that an action alleging a physician's failure to inform a patient fully of the risks of surgery is a negligence claim governed by the procedural requirements of the Medical Liability Act.  Because he failed to file a sufficient expert report, the trial court properly dismissed Tien's claim. 

See the opinion at Tien v. Alappatt.

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.

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.

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.

SC--Garcia v. Gomez; Attorneys Fee when No Expert Report is Served

Thanks to David Walsh with Chamblee & Ryan  for this summary.

The principal issue is whether an attorney’s unchallenged testimony as to what he would have charged in a case, without more, legally supports an attorneys-fee sanction for filing a medical-malpractice claim without an expert report. Gomez first sued Garcia for medical malpractice, based on Dr. Garcia’s alleged failure to use a screen during surgery to prevent an embolism. The patient died after an embolism. When an X-ray revealed such a filter had been implanted, Gomez quit pursuing the claim, but did not nonsuit the case and did not file an expert report by the 120-day deadline. Garcia moved for attorneys fees under Texas Civil Practices and Remedies Code section 74.351(b). Garcia’s attorney testified without challenge as to reasonable fees in such a case. The trial court denied the motion for sanctions and the appeals court affirmed.

The Supreme Court HOLDS evidence existed of reasonable fees and that Garcia incurred the cost of those fees and section 74.351(b) mandates attorneys fees be awarded when expert reports are not filed within time limits. Although Garcia’s attorney’s testimony lacked specifics, it was not, under these circumstances, a mere conclusion but some evidence of what a reasonable attorney’s fee might be in this case. The statute limits the award to the lesser of the two, that is, the fee to be awarded is the lesser of a reasonable fee or the fee actually incurred. Testimony about reasonable fees then is not necessarily evidence about the fees incurred.

See the opinion at Garcia v. Gomez.

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.

13th COA--Christus Spohn Hospital et al v. Lackey; Expert Reports in Survival and Wrongful Death Action

Thanks for Bruce Anderson of Brin & Brin in San Antonio for this case summary.

In Christus Spohn Health System Corporation, et al v Lackey, et al, the court held that the expert reports were adequate for the survival action, but not for the wrongful death action.  They sent the case back to dismiss the wrongful death cause of action (a 30 day extension had already been given). 

This is NOT the law in the 4^th Court of Appeals.  They believe that if the report is sufficient as to any part of plaintiff’s case, the motion to dismiss must be overruled.  This is a conflict that the Supreme Court will have to take on eventually. 

See the opinion at Christus Spohn Hosp. et al v. Lackey

13th COA--Loaisiga v. Cerda; expert reports

Plaintiffs Cerda and Velez filed a health care liability against Dr. Loaisiga and his PA alleging sexual assault during physical examinations.  Plaintiffs denied that these were health care liability claims, but "out of an abundance of caution," they timely filed the expert report of a physician.  Dr. Loaisiga and his PA filed objections to the report, which were overruled by the trial court.  Dr. Loaisiga and his PA appealed.

On appeal, the COA agreed that these claims were not health care liability claims.   The Court pointed out that this was not a case where the physician's conduct could feasibly be explained as part of the rendition of health care services or treatment.   Because no expert report was required, the trial court was correct to deny the motion to dismiss.

As to Dr. Loaisiga's PA, the appellate court referred to Plaintiff's Petition and noted that no allegation of medical negligence were made against the PA.  As a result, no expert report was required.

See the opinion at Loaisiga v. Cerda et al.

8th COA--Providence v. Barnes et al.; expert report, expert qualifications

In this appeal of a motion to dismiss for failing to serve an expert report authored by a qualified expert, the El Paso COA affirmed the trial court's decision. The case stemmed from care and treatment rendered to Plaintiff's mother at Providence. Plaintiffs served the reports and CVs of three experts: Michael Koumijan, M.D.; Juan Contin, M.D. and Angelica Tyler, R.N. Plaintiffs objected the reports, claiming they were inadequate and the authors were not qualified as experts. They also claimed that Dr. Contin's report was not an expert report at all.  

The COA first held that the three expert reports could be read together to determine if they met the standards for Chapter 74 expert report.  The COA then found that Dr. Koumijan and Nurse Tyler stated the standard of care for treating a patient undergoing an angiogram.  They also found the reports adequate as to causation. 

The COA then looked at the expert qualifications.  They overruled Providence's point that Dr. Koumijan was not licensed in Texas.  They then considered whether Dr. Koumijan, Chief of Surgery at a hospital in California, was qualified to testify as to the standard of care for nursing care and transfer of a patient.  Because his position "necessarily entails supervision of and interaction with the requisite health care providers,"  Dr. Koumijan was qualified. 

Providence also challenged the qualification of Nurse Tyler because she worked as a medical care investigator for the Attorney General in New Mexico, not in direct patient care.  The COA held that Nurse Tyler had education, certifications and experience in many areas of nursing.  They stated that her position as an investigator was akin to a consulting health care provider who is licensed, certified or registered in the same field as the defendant.

See the full opinion at Providence v. Barnes.