The State of Texas Fourteenth Court of Appeals (“Texas Appellate Court”) held in its opinion filed on April 2, 2019: “Because [the plaintiff’s] expert report provided a fair summary of the expert’s opinions regarding the applicable standards of care, a statement identifying the manner in which the care rendered by [the defendant dentist] failed to meet the standards, and an explanation of the causal relationship between that failure and the injury, harm, or damages claimed, the trial court did not abuse its discretion in denying Appellants’ motion to dismiss. See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).”
The plaintiff had gone to the defendant dentist on July 25, 2016 for treatment of an upper left wisdom tooth abscess. The defendant charted various operative and restorative dental procedures the plaintiff needed, including surgical extraction of teeth numbers 1, 16, 17, and 32. The defendant dentist extracted tooth #16 that day without complications but did not extract tooth #17 or prescribe any antibiotics although an abscess on tooth #17 was clearly visible on a panoramic X-ray. The plaintiff saw a medical provider on April 26, 2017 at which time he had an extraction of tooth #17 and incision and drainage of a large infection that the defendant dentist had failed to identify. The plaintiff developed osteomyelitis and other large infections that eventually required a resection of his lower left mandible.
The plaintiff filed his Texas dental malpractice lawsuit against the dentist and his dental practice, alleging negligent evaluation, treatment, and management of care that resulted in the plaintiff’s permanent, disabling injuries, including the development of osteomyelitis and other severe infections; the compete loss of his lower left mandible; permanent facial disfigurement and loss of function; permanent loss of many teeth in his lower jaw; and at least three subsequent surgical procedures that would not have been necessary but for the defendant’s dental negligence. The plaintiff served the defendants with a Chapter 74 expert report and curriculum vitae of an expert pursuant to Tex. Prac. & Rem. Code § 74.351(a) and § 74.001(13) (defining “health care liability claim”).
The defendants objected to the plaintiff’s expert’s report, complaining that the report failed to address the required statutory elements and thus failed to demonstrate a good faith effort to provide them with notice of the basis of the plaintiff’s claims. The trial court signed an order overruling all of the defendants’ objections to the plaintiff’s expert’s report, finding that the report was sufficient for purposes of Chapter 74. The defendants then filed an interlocutory appeal.
Texas Appellate Court Opinion
The Texas Appellate Court stated that the Texas Medical Liability Act requires that plaintiffs alleging a health care liability claim must serve each defendant with an adequate expert report or face dismissal of their claim. The expert report must provide a “fair summary” of the expert’s opinions regarding the (1) applicable standards of care, (2) manner in which the care rendered by the physician or health care provider failed to meet the standards, and (3) causal relationship between that failure and the injury, harm, or damages claimed. Tex. Civ. Prac. & Rem. Code § 74.351(r)(6).
“Good Faith Effort”
An expert report is adequate if the trial court finds that it constitutes a “good faith effort” to comply with the statutory requirements. An expert report demonstrates a good faith effort when it contains sufficient information within the four corners of the document to (1) inform the defendant of the specific conduct called into question and (2) provide a basis for the trial court to conclude the claims have merit. No particular words or formality are required, but bare conclusions will not suffice.
In the case it was deciding, the plaintiff’s expert’s report set out three specific standards of care: (1) making a correct diagnosis based on the oral and radiographic examination; (2) referring the plaintiff to the appropriate dental specialist, such as an oral surgeon, for dental treatment he was unable to diagnose or unwilling to perform; and (3) treating an oral infection with antibiotics. The plaintiff’s expert opined that the defendant dentist breached the standards of care when he failed to diagnose a dental infection on tooth #17 that was “clearly visible” on an X-ray during the initial examination and extract the tooth to remove the infection, failed to refer the plaintiff to an appropriate dental specialist or oral surgeon when he was unable to diagnose the infection or unwilling to extract the tooth, and failed to prescribe antibiotics that would have reduced the infection when, roughly six months after the plaintiff’s initial visit to the defendant dentist, the defendant observed swelling and inflammation around the area of tooth #17.
The Texas Appellate Court stated that the plaintiff’s expert’s report adequately identified the standards of care applicable to the defendant dentist and the specific actions the defendant should have taken but did not. The Texas Appellate Court held: “More detail is not required at this stage of the proceedings … [b]ecause the report is sufficient as to the standards of care identified and the breaches of those standards, we overrule Appellants’ first issue.”
The Texas Appellate Court further held that the absence of an opinion stating with specificity at what point in the continuum of disease progression became irreversible or when an intervention would have proven timely does not cause an expert’s causation opinion to be conclusory at this early stage of evaluation: “[t]o constitute a good faith effort, an expert must explain the basis of his statements and link his conclusions to specific facts … [w]e conclude that [the plaintiff’s expert’s] expert report sufficiently explains the basis of his statements and links his conclusions to facts.”
Source Naderi v. Ratnarajah, No. 14-18-00480-CV.
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