Wednesday, December 21, 2011

No Medical Malpractice Lawsuit without Expert Report

In the course of tort reform, the Texas legislature required that each medical malpractice lawsuit be accompanied by an expert report to vouch for its non-frivolousness. The required report must cover several elements and has been the subject of much appellate litigation. The stakes are high, because failure to file the report entails dismissal. Failure to file an adequate expert report, or failure to file it timely, usually has dire consequences likewise.

When a plaintiff brings a healthcare liability claim, section 74.351 requires the plaintiff to serve each health care provider defendant with an expert report that “provides a fair summary of the expert’s opinions . . . 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 relations between that failure and the injury, harm, or damages claimed.” TEX. CIV. PRAC. & REM. CODE ANN. §§ 74.351(a) and 74.351(r)(6).

If a plaintiff timely files an expert report, the defendant may move to challenge its sufficiency. Id. § 74.351(a); Palacios, 46 S.W.3d at 877. The trial court must dismiss the case with prejudice if the court finds that the report does not represent a good-faith effort to comply with the statute. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l); Palacios, 46 S.W.3d at 877 (discussing predecessor statute).

An expert report represents a good faith effort to comply with section 74.351 if it provides enough information to inform the defendant of the specific conduct called into question by the plaintiff and provides a basis for the trial court to determine that the claims made by the plaintiff have merit. Palacios, 46 S.W.3d at 879. The report need not marshal all of the plaintiff’s proof, but it must address all three statutory elements—standard of care, breach and causation. See id. at 878. The report must link the expert’s conclusions to the facts upon which those conclusions rest. See Jelinek, 328 S.W.3d at 539 (citing Bowie Mem’l Hosp., 79 S.W.3d at 52). An expert report that omits any of the statutory requirements is not a good faith effort. Palacios, 46 S.W.3d at 879. In reviewing the sufficiency of a report, we look only within the four corners of the document. Id. at 878.

Section 74.351(c) permits a trial court to grant a medical malpractice plaintiff a thirty day extension if an expert report “has not been served within the period specified by Subsection (a) because elements of the report are found deficient.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). If the claimant receives notice of the court’s ruling after the initial 120-day deadline has passed, then the extension runs from the date the plaintiff first received notice. Id.


We review the trial court’s decision on a section 74.351 motion to dismiss for abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (addressing predecessor statute to section 74.351). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (quoting Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 51–52 (Tex. 2002)).

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00136-CV - 12/14/11

A bare assertion of causation does not meet the requirements of section 74.351(r)(6), because “[a]n expert report cannot simply opine that the breach caused the injury.” Jelinek, 328 S.W.3d at 539. No “magical words” such as “reasonable medical probability” demonstrate that the report complies with section 74.351(r)(6). See Bowie Mem’l Hosp., 79 S.W.3d at 53; Regent Care Ctr. of San Antonio II, Ltd. P’ship v. Hargrave, 300 S.W.3d 343, 347 (Tex. App.—San Antonio 2009, pet. denied) (finding single sentence addressing causation did not demonstrate good-faith effort to comply with Act). Rather, to satisfy the element of causation, an expert must explain the basis of her statements and link her conclusions to the facts of the case. Jelinek, 328 S.W.3d at 539; Bowie Mem’l Hosp., 79 S.W.3d at 52.

A report does not represent a good-faith effort to comply with section 74.351(r)(6) and is conclusory if it simply contends that a doctor’s breach caused injury to a person that the doctor never treated. See Jelinek, 328 S.W.3d at 538. Because Dr. Poindexter’s report does not satisfy the statutory test with respect to Rajan’s conduct, the trial court had no option but to conclude that the expert report is deficient in that respect. See Palacios, 46 S.W.3d at 879–80. Conclusion

Because Dr. Poindexter’s expert report does not sufficiently address the causation elements that Chapter 74 requires, the report does not meet the section 74.351(r)(6) standards. Accordingly, we reverse the trial court’s order and dismiss the Stockdales’ claims against Rajan with prejudice.

SOURCE: HOUSTON COURT OF APPEALS - 01-11-00136-CV - 12/14/11

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