Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, April 15, 2015

Expert Report Requirements in Med-Mal Case as articulated in recent (2015) appellate opinions


HEALTH CARE LIABILITY CLAIMS IN TEXAS - THE STATUTORY EXPERT REPORT REQUIREMENT 

The Medical Liability Act provides that a claimant in a health care liability claim shall serve an expert report showing that the claim has merit within 120 days of the date the suit was filed. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2014).

Section 74.351 requires the expert report to provide a fair summary of the expert's opinions regarding: (1) the applicable standards of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6); Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 858-59 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

The expert report need not marshal all of the plaintiff's proof, but it must demonstrate an objective good faith effort to comply with the statutory requirements. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 878; Gray, 189 S.W.3d at 859; Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).

To constitute a good faith effort to comply with the statute, the report must provide enough information to fulfill two purposes: it must (1) inform the defendant of the specific conduct that the plaintiff has called into question; and (2) provide a basis for the trial court to conclude that the claims have merit. Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex. 2011); Palacios, 46 S.W.3d at 879; Gray, 189 S.W.3d at 859. In making this determination, we review the information contained within the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

A conclusory report does not fulfill these two purposes. Palacios, 46 S.W.3d at 879. "[R]ather, the expert must explain the basis of his statements to link his conclusions to the facts." Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). The Act grants the trial court discretion to grant a plaintiff who timely serves a report one 30-day extension to cure its deficiencies. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c).

SOURCE: FIRST COURT OF APPEALS OF TEXAS - 01-14-00448-CV - 2/26/2015

Expert Report Statutory Requirements

The Texas Civil Practice and Remedies Code defines an expert report as:
a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6) (West Supp. 2014).

Further, the statute provides that a "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." Id. at § 74.351(l). A good faith effort has been defined as a report that does not contain a material deficiency. Samlowski v. Wooten, 332 S.W.3d 404, 409-10 (Tex. 2011). Therefore, the report must include all the required elements and explain their connection to the defendant's conduct in a non-conclusory fashion. Id. at 410. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. Palacios, 46 S.W.3d at 878.

The purpose of an expert report under section 74.351 is to inform the defendants of the specific conduct the plaintiff has called into question and to provide the trial court with a basis to determine whether the plaintiff's claims have merit. See Kingwood Pines Hosp., LLC v. Gomez, 362 S.W.3d 740, 747 (Tex. App.-Houston [14th Dist.] 2011, no pet.). A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill these purposes. Palacios, 46 S.W.3d at 879. Instead, the expert must explain the basis of his statements to link his conclusions to the facts. Kingwood Pines Hosp., LLC, 362 S.W.3d at 747.

SOURCE: DALLAS COURT OF APPEALS  - 05-14-00586-CV - 3/6/2015

(In view of Dr. Mansfield's general and conclusory statements in his reports, we conclude that the trial court abused its discretion by failing to dismiss the claims against Senior Care Center. We resolve the issues against Senior Care Centers, reverse the trial court's order, and remand the case to the trial court for dismissal and a determination of attorney's fees and costs of court pursuant to section 74.351(b) of the TMLA. See PM Mgmt.-Trinity NC, LLC v. Kumets, 404 S.W.3d 550, 551 (Tex. 2013).)

Health care liability case governed by the Texas Medical Liability Act.  

Tex. Civ. Prac. & Rem. Code §§ 74.001-.507

The Act entitles a defendant to dismissal of a health care liability claim if she has not been served with an expert report showing that the claim has merit within 120 days of the date suit was filed. § 74.351(a)-(b); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011). The trial court's refusal to dismiss may be immediately appealed. Tex. Civ. Prac. & Rem. Code § 51.014(a)(9); Scoresby, 346 S.W.3d at 549. We review a trial court's denial of a motion to dismiss under section 74.351 for abuse of discretion. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010); Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.-Houston [14th Dist.] 2013, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

The Act specifies requirements for an adequate report and mandates "an objective good faith effort to comply" with the requirements. Tex. Civ. Prac. & Rem. Code § 74.351(l), (r)(6); Scoresby, 346 S.W.3d at 549. It also authorizes a trial court to give a plaintiff who meets the 120-day deadline an additional 30 days to cure any deficiencies in the report. Tex. Civ. Prac. & Rem. Code § 74.351(c); Scoresby, 346 S.W.3d at 549. When determining if a good faith effort has been made, the trial court is limited to the four corners of the report and cannot consider extrinsic evidence. See Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 361.

An expert report must provide a fair summary of the expert's opinions regarding (1) the applicable standard of care; (2) the manner in which the care provided failed to meet that standard; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6); Bailey, 402 S.W.3d at 361-62. In compliance with these standards, the expert report must incorporate sufficient information to inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude the claims have merit. Bailey, 402 S.W.3d at 362.

A report may not merely contain the expert's conclusions about these elements. Jelinek, 328 S.W.3d at 539; Bailey, 402 S.W.3d at 362. The expert must explain the basis for his statements and link his conclusions to the facts. Jelinek, 328 S.W.3d at 539. However, a plaintiff need not present all the evidence necessary to litigate the merits of her case. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875, 879 (Tex. 2001); Bailey, 402 S.W.3d at 362. The report may be informal in that the information need not fulfill the same requirements as the evidence offered in a summary judgment proceeding or at trial. Palacios, 46 S.W.3d at 879; Bailey, 402 S.W.3d at 362. The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits. Loaisiga v. Cerda, 379 S.W.3d 248, 258 (Tex. 2012); Scoresby, 346 S.W.3d at 554. Thus, it is only a threshold mechanism to dispose of claims lacking merit. Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 631 (Tex. 2013).

The standard of care is defined by what an ordinarily prudent health care provider or physician would have done under the same or similar circumstances. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. Identifying the standard of care is critical: whether a defendant breached her duty to a patient cannot be determined absent specific information about what the defendant should have done differently. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366. While a "fair summary" is something less than a full statement of the applicable standard of care nd how it was breached, even a fair summary must set out what care was expected, but not given. Palacios, 46 S.W.3d at 880; Bailey, 402 S.W.3d at 366.

SOURCE: HOUSTON COURT OF APPEALS - 14TH DISTRICT - 14-14-00527-CV - 1/22/2015




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