In its opinion filed on August 17, 2017, the Court of Appeals for the First District of Texas (“Texas Appellate Court”) held that the trial court reasonably could have concluded that the plaintiff’s expert report met the requirements of Civil Practice and Remedies Code section 74.351(r)(6) in setting out specific conduct that breached the relevant standard of care and was a proximate cause of the plaintiff’s birth injuries, and that the trial court reasonably could have concluded that the expert’s report and curriculum vitae established that he was qualified to opine on the relevant medical issues.
The plaintiff was forty weeks pregnant on November 4, 2014 when she was admitted to the hospital after being diagnosed with a decrease in amniotic fluid, in order for labor to be induced. The plaintiff was administered Pitocin to aid in the induction of her labor, and her baby’s heart rate was monitored using fetal heart rate tracings.
Thirty-six hours later, after additional diagnoses of gestational hypertension, preeclampsia, and intraamniotic infection, and multiple fetal heart rate tracings showing that the baby was in distress, the attending physician delivered the plaintiff’s baby, who suffered from a permanent and severe brain injury known as hypoxic ischemic encephalopathy (“HIE”).
The plaintiff filed her Texas medical malpractice lawsuit on behalf of her child and herself, alleging that the hospital and her doctors, including two resident physicians who cared for her during her labor and the subsequent birth of her son, were negligent in their care and treatment that led to the serious harms suffered by the plaintiff and her baby. As required by Texas medical malpractice law, the plaintiff filed an expert report in support of her medical malpractice claims.
The two defendant resident physicians moved to dismiss the plaintiff’s medical malpractice claims, alleging that the plaintiff’s expert report was inadequate, arguing that: (1) the expert report failed to establish causation because it admits that [their] care ended before any injury became foreseeable and/or necessary action (expeditious delivery) should have occurred, and (2) the report and attached curriculum vitae failed to establish the expert’s qualifications to opine on the specific issue of the timing of hypoxic brain injuries. The Texas trial court denied the defendants’ motion to dismiss.
Texas Appellate Court Opinion
Tex. Civ. Prac. & Rem. Code Section 74.35(l) requires that the trial court shall grant a motion challenging the adequacy of an expert report only if it appears to the court that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). Subsection 74.351(r)(6) defines “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 . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.”
The Texas Appellate Court stated that the plaintiff’s expert report need not marshal all of the plaintiff’s proof but it must include the expert’s opinion on the three statutory elements: standard of care, breach, and causation. To constitute a “good faith effort” to comply with the statute, the expert report must provide enough information to fulfill two purposes: the report 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.
A causal relationship is established by proof that the negligent act or omission constituted a substantial factor in bringing about the harm and absent the act or omission, the harm would not have occurred. In the report, the expert must explain the basis for his statements and must link his ultimate conclusions to the facts of the particular case. In assessing the sufficiency of the report, the trial court may not draw any inferences; instead, it must exclusively rely upon the information contained within the four corners of the report.
The Texas Appellate Court held that the plaintiff’s expert’s report (amended report) is sufficient to inform both defendant resident physicians of the specific conduct that the expert had called into question, and it provided a basis for the trial court to conclude that the plaintiff’s medical malpractice claims against them have merit.
With regard to the defendant resident physicians’ argument that neither the expert report nor the attached curriculum vitae established that the plaintiff’s expert was qualified to opine on the specific issue of the timing of the baby’s hypoxic birth injury, the Texas Appellate Court cited Tex. Civ. Prac. & Rem. Code Section 74.403(a) that provides “[A] person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.” Section 74.351(r)(5)(C) defines an “expert” qualified to give opinion on causation as a “physician who is otherwise qualified to render opinions on such causal
relationship under the Texas Rules of Evidence.”
The Texas Appellate Court stated that the Texas Rules of Evidence provide that an expert witness may be qualified on the basis of “knowledge, skill, experience, training, or education” to testify on scientific, technical, or other specialized subjects if the testimony would “help the trier of fact to understand the evidence or to determine a fact in issue.” Thus, a plaintiff must show that her expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. Although not every licensed physician is qualified to testify on every medical question, a physician need not practice in the particular field about which he is testifying so long as he can demonstrate that he is qualified to opine on the specific issue before the court.
The plaintiff’s expert’s report stated that the expert is a practicing obstetrician and gynecologist and has been an attending physician in that field at Cedars Sinai Medical Center since 1985; that he is board certified by the American Board of Obstetrics and Gynecology and a fellow of the American College of Obstetrics and Gynecology; that he had experience supervising nurses and residents or physicians in training in the labor and delivery context, and he specifically stated, “As a physician who manages labor and delivery, I am also responsible for knowing the consequences, including the neurological consequences and sequelae, for failing to timely deliver a child who is exhibiting signs of fetal distress”; and, that he was “familiar with the neurologic consequences of failing to promptly deliver a child showing signs of fetal distress.”
The Texas Appellate Court concluded: “because [the plaintiff’s expert] demonstrated expertise in managing labor and delivery and the complications that stem from labor and delivery, the trial court reasonably could have concluded that he was qualified to opine on the causal link between [the defendant resident physicians’] breaches of their duty of care and the harm suffered by [the baby], including his neurological injuries … ”
Source Rouhani v. Morgan, No. 01-16-00957-CV
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