Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Sunday, November 2, 2014

What is an "expert report" required by the Texas statute governing health care liability claims?


EXPERT REPORTS UNDER TEXAS MEDICAL LIABILITY ACT

The Texas Medical Liability Act requires a claimant asserting a health care liability claim to timely serve one or more expert reports addressing the conduct of each health care provider against whom a claim has been asserted. § 74.351(a). If a sufficient expert report is not filed within the requisite period specified, section 74.351(b) mandates the court enter an order dismissing that claim, with prejudice. As to the sufficiency of the report, section 74.351(l) provides a trial court "shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report . . . ." To qualify as an objective good faith effort the report must (1) inform the defendant of the specific conduct the claimant questions, and (2) provide a basis for the trial court to conclude there is a meritorious claim. Loaisiga v. Cerda, 379 S.W.3d 248, 260 (Tex. 2012); Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011) (citing Palacios, 46 S.W.3d at 879).

An "expert report" is defined as a written report by an expert that provides a fair summary of the expert's opinions regarding (1) the applicable standards of care, (2) the manner in which the care rendered by the physician or health care provider fails to meet those standards and (3) the causal relationship between that failure and the injury, harm or damages claimed. See § 74.351(r)(6); see also TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013) (citing Palacios, 46 S.W.3d at 879); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013). The expert report must not be conclusory in its explanation of causation and it must explain the basis for the expert's causation opinions by linking the expert's conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Palacios, 46 S.W.3d at 879; Wells v. Ashmore, 202 S.W.3d 465, 467 (Tex. App.-Amarillo 2006, no pet.). The report need not present evidence as if the plaintiff was actually litigating the merits, Palacios, 46 S.W.3d at 879, and there are no magic words required to establish causation. Bowie Mem'l Hosp., 79 S.W.3d at 53. "[A] report that satisfies these requirements, even if as to one theory only; entitle[s] the claimant to proceed with a suit against the physician or health care provider." Potts, 392 S.W.3d at 630.

SOURCE: AMARILLO COURT OF APPEALS - No. 07-13-00181-CV - 10/7/2014



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