In its Memorandum Opinion filed on May 25, 2017, the Court of Appeals Thirteenth District Of Texas (“Texas Appellate Court”) affirmed the trial court’s ruling that the plaintiff’s expert report filed with her Texas medical malpractice lawsuit was sufficient. The medical malpractice defendant challenged nearly every aspect of the plaintiff’s expert’s report as conclusory and speculative. The Texas Appellate Court held that it was not.
The plaintiffs (husband and wife) allege in their Texas medical malpractice petition that on the night of June 28, 2013, when the wife was nine months pregnant, she fell in the shower and landed “hard” on her stomach. She sought medical attention at the defendant medical center where the defendant obstetrician was on-call at the time.
The defendant OB was notified by telephone of the plaintiff’s situation minutes after her arrival. The defendant OB ordered an ultrasound, and various medical personnel at the hospital monitored her condition and administered other care over the coming hours. However, in the hours that followed, the vital signs of the plaintiffs’ unborn child began to deteriorate. The defendant OB came to the hospital and performed an emergency cesarean section, but by the time of delivery, the child had died. The plaintiffs subsequently filed their Texas medical malpractice lawsuit along with their expert’s report, as required by Texas’ medical malpractice laws.
Texas’ medical liability statute requires 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. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
The report cannot merely state the expert’s conclusions about these elements, but instead must explain the basis of the expert’s statements to link his conclusions to the facts. However, the expert report may be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary-judgment proceeding or at trial.
The Plaintiff’s Expert’s Report
The Texas Appellate Court stated that over the course of fourteen pages, the expert’s report offers a detailed explanation of his opinion on all elements of the plaintiffs’ health care liability claim, including the challenged elements: breach and causation. The expert’s report describes the scientific principles pertaining to the injuries sustained as a result of the wife’s fall and how these injuries put the child’s life in jeopardy: abdominal trauma can lead to placental abruption, and with it, hematomas, clotting, distortion of the intervillous space, and damage to the placental tissues, which in turn disrupts the exchange of oxygen, nutrients, and waste, harming the fetus. The expert describes that the classical presentation of the traumatic abruption includes vaginal bleeding, abdominal pain and uterine contractions. These may not all be present and vary in degree. The abdominal pain may present as uterine irritability and uterine contractions. This may be accompanied by nausea, vomiting and reduced or absent fetal movements. Another common finding is evidence for fetal distress such as fetal tachycardia and late decelerations.
The plaintiff’s expert detailed the following facts in his report: the wife was twenty-six at the time of the incident, and she previously had multiple uncomplicated pregnancies and deliveries. The wife fell in the shower at approximately 8:30 p.m. on June 28, 2013, and she was sure something was terribly wrong. She presented to the emergency room at 8:51 p.m. with a tender stomach, pain, no vaginal bleeding, and fetal vital signs of 120 beats per minute. The defendant OB was informed of her condition at 8:53 p.m., and he ordered the labor and delivery staff to evaluate her for blunt trauma to the abdomen, including an ultrasound. At 9:00 p.m., a nurse initiated continuous monitoring of the baby’s vitals and documented contractions at two to six minutes apart as well as the wife’s complaint of not feeling the baby move. To allow for the sonogram, continuous monitoring of fetal vital signs were discontinued at 11:43 p.m., at which point the vital signs were approximately 130 beats per minute with absent decelerations and frequent uterine contractions, which indicated decreased flow of oxygen to the fetus. Continuous monitoring resumed at 12:29 a.m., at which point vitals had declined to 120 beats per minute and indicated possible late fetal heart rate decelerations and continued, frequent contractions. The defendant OB was notified of non-reassuring fetal heart rate at 12:55 a.m., at which point he ordered a cesarean section. At 1:11 a.m., the defendant OB called on his way to the hospital and expressed his intention to begin the cesarean section as soon as he arrived. The incision was made at 1:40 a.m., and the deceased child was delivered at 1:41 a.m.
The plaintiff’s expert further stated in his report that the standard of care required the defendant OB (1) to recognize that because the wife had suffered an abdominal trauma while nine months pregnant, this put her at high risk of an abruption and feto-maternal transfusion; in light of these risks, the standard of care further required the defendant OB (2) to immediately proceed to the hospital to examine the patient, (3) to recognize that fetal status may deteriorate rapidly in the context of obstetrical abdominal trauma, (4) to order continuous fetal monitoring to detect signs of abruption and transfusion, and (5) to be adequately proximate to the hospital when on call to be able to respond to such emergencies in a timely fashion.
The plaintiff’s expert opined in his report that the defendant OB committed multiple breaches of these standards which, individually and in tandem, proximately caused the death of the child (the defendant OB breached the standard of care when he failed to recognize the risks associated with the abdominal trauma, including the potential for rapid deterioration in the fetus’s condition due to abruption and feto-maternal transfusion, and when he failed to come to the hospital to examine the wife. If the defendant OB had promptly come to the hospital and examined the wife, this would have led the defendant OB to discover multiple symptoms of abruption, including abdominal pain and frequent uterine contractions. In the context of abdominal trauma for a patient with a history of prior uncomplicated term pregnancies, these symptoms would have led a reasonable obstetrician to diagnose abruption and to order cesarean delivery, but the defendant OB’s breach delayed this diagnosis until it was too late to save the child’s life. Had the defendant OB immediately come to the hospital, he would have in reasonable probability diagnosed placental abruption and performed a cesarean section before 11:00 p.m., at which time the fetal heart rate was still 130 beats per minute, demonstrating the child’s viability).
In the alternative, the plaintiff’s expert opined that the defendant OB was initially made aware of the wife’s abdominal pain and worsening contractions, but he nonetheless failed to recognize these symptoms, diagnose abruption, and order cesarean section before the child’s vital signs worsened, thereby breaching the standard of care (had there been such a timely diagnosis and delivery as required by the standard of care, the child would have survived in reasonable medical probability).
The plaintiff’s expert opined that the defendant OB’s failure to order continuous fetal monitoring resulted in the late detection of worsening vital signs, further delaying the decision to perform a cesarean section. Instead, the defendant OB ordered an ultrasound which resulted in the discontinuation of monitoring for a lengthy interval. An ultrasound may be useful, but it is not reliable enough to consistently diagnose nor exclude abruption. Therefore, valuable time should not be lost in performing an ultrasound examination in the presence of fetal distress. The fetal vital signs deteriorated at some point after the discontinuation of monitoring at 11:43 p.m. If continuous monitoring had been in place, the earlier detection of warning signs would have in reasonable probability led to cesarean delivery before 12:30 a.m.—a time which was not too late to save the child’s life, given the observed fetal heart rate of 120 beats per minute when monitoring resumed at 12:30 a.m.
The Texas Appellate Court held that the trial court could have reasonably concluded that the detailed opinions in the plaintiff’s expert’s report informed the defendant OB of the conduct called into question and provided a basis to show the claim’s merit: it was not arbitrary or unreasonable for the trial court to conclude that the report constituted a good faith effort to provide a fair summary of the expert’s opinions on breach and causation, the only two elements challenged by the defendant OB.
Source Minck v. Perales, Number 13-16-00694-CV
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