AMA - New AMA Policy Helps Guide Physicians’ Use of Social Media

AMA - New AMA Policy Helps Guide Physicians’ Use of Social Media

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.

Ten Things Your Expert Forgot to Tell You

Check out this helpful article from the ABA Litigation Section.

Ten Things Your Expert Forgot to Tell You

I personally once called someone to see if they would review a case.  His assistant seemed surprised at my request.  I then looked him up on the Medical Board site and found that he was under Board Order for abusing anesthesia drugs and had once been found passed out in an OR after self-administering drugs.  Lesson:  Always check licensure status before making the first contact!

Sometimes we get so enamored with our experts and their helpful opinions that we look at them as opposing counsel or the jury would.  A good practice would be to spend as much time researching your own experts as you do researching those retained by the opposing side.  While these aren't the most "fun" topics to discuss with your retained experts, finding out this information well in advance of a designation deadline could save you time and embarassment later in your case. 

My thanks to Francisco Ramos, Jr. for his great article. 

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.