The Texas Eleventh Court of Appeals (“Texas Appellate Court”) held in its June 6, 2019 opinion that the Texas medical malpractice plaintiff’s expert report was inadequate “Because the expert report filed by Appellees in support of their claims fails to state the specific conduct that breached the applicable standard of care and is conclusory regarding causation.”
The Underlying Facts
A morbidly obese patient undergoing a routine placement of a port-a-cath died while under general anesthesia. The Texas medical malpractice plaintiff alleged that the defendant certified registered nurse anesthetist (CRNA) was responsible for anesthetizing the decedent during the procedure and that his failure to properly use and supervise the anesthesia equipment and to properly monitor the decedent caused his death.
As required under Texas medical malpractice laws, the plaintiff attached the expert report of an anesthesiologist to their original petition. See CIV. PRAC. & REM. § 74.351(a). The defendant objected that the report was insufficient, arguing that the report failed to specify how any conduct by the defendant deviated from the identified standards of care and did not adequately explain the causal relationship between the defendant’s alleged medical negligence and the decedent’s death. The trial court overruled the defendant’s objections to the plaintiff’s expert report and denied the motion to dismiss. The defendant appealed.
Texas Appellate Court Opinion
The Texas Medical Liability Act (the TMLA) requires health care liability claimants to serve an expert report upon each defendant within 120 days after the defendant files an answer, to weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims. An expert report must provide a fair summary of the expert’s opinions regarding the applicable standard of care, the manner in which the care rendered failed to meet that standard, and the causal relationship between the failure to meet the standard of care and the injury suffered. CIV. PRAC. & REM. § 74.351(r)(6).
In order for a report to be sufficient under the TMLA, the expert is required to explain the basis of his statements and link his conclusions to the facts. An expert report need not marshal all the plaintiff’s proof, but a report that merely states the expert’s conclusions about the standard of care, breach, and causation is insufficient. In determining whether an expert report contains the required information, a court must review the entire report, not just specific portions or sections.
The Texas Appellate Court stated that the plaintiff’s expert report in the present case did not identify facts to support that any of the unsafe practices or deviations identified in the report occurred during the decedent’s procedure, that the defendant CRNA was distracted during the procedure, or that the defendant CRNA committed any act that constituted a breach of the applicable standard of care. Instead, the expert essentially speculated that conduct constituting a breach of the standard of care must have actually occurred. ” … an expert’s mere conclusions on the breach of a standard of care are not sufficient to constitute a “good faith effort” … We conclude that the report does not meet the statutory requirement that it show the manner in which the care rendered failed to meet the applicable standard of care. See CIV. PRAC. & REM. § 74.351(r)(6).”
The Texas Appellate Court further held that while the plaintiff’s expert opined that a series of events led to the decedent’s death, the expert did not link that conclusion to any specific facts. “Because the report fails to inform Appellants of the specific conduct challenged and does not sufficiently link [the expert’s] opinion on causation to the relevant facts, we conclude that the trial court abused its discretion by denying Appellants’ motion to dismiss.”
However, the Texas Appellate Court stated that while the expert’s report does not specify any conduct by the defendants that either breached the applicable standard of care or caused the decedent’s death, “we cannot conclude that it would be impossible to do so. Therefore, the trial court must have an opportunity to consider an extension [i.e., one thirty-day extension to cure a deficiency in an expert report. See CIV. PRAC. & REM. § 74.351(c)].”
MCH Professional Care v. Zubia, 2019 WL 2385771 (Tex.App.-Eastland, June 6, 2019).
If you or a loved one may have been injured (or worse) as a result of medical negligence in Texas or in another U.S. state, you should promptly find a Texas medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.