In a case decided by the Court of Appeals Eighth District of Appeals El Paso, Texas (“Appellate Court”) on December 9, 2016, the Appellate Court held that the trial court did not abuse its discretion in finding that the plaintiff’s expert in her Texas medical malpractice case was qualified to render an expert report in her case and that the expert’s report was sufficient as to causation, thereby affirming the judgment of the trial court that allowed the plaintiff’s Texas medical malpractice case to proceed.
Texas Medical Liability Act
The Texas Medical Liability Act (“TMLA”) that was passed in 2003 requires all plaintiffs bringing healthcare liability claims in Texas, including malpractice claims against doctors, to submit an expert report confirming the viability of their claims within 120 days after filing suit or else face dismissal. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a)-(b)(2)(West Supp. 2015). A valid expert report under the TMLA must provide: (1) a fair summary of the applicable standards of care; (2) the manner in which the physician or health care provider failed to meet those standards; and (3) the causal relationship between that failure and the harm alleged. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(r)(6). The report or an attached curriculum vitae must also establish the expert’s qualifications in the relevant subject matter area. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(a).
If a plaintiff’s initial expert report is deficient, but the trial court finds it was a good faith attempt to comply with the TMLA’s requirements, the trial court will grant one thirty-day extension so the plaintiff can file a supplemental report curing any deficiencies. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(c). Failure to timely file a compliant report that cures a previous report’s deficiencies results in dismissal of the plaintiff’s claim with prejudice. TEX.CIV.PRAC.&REM.CODE ANN. § 74.351(b)(2) & (c).
The purpose of the TMLA’s expert report requirement is both to place healthcare providers on notice of what specific conduct is at issue in a particular case, and to provide judges who may have no medical training or knowledge of healthcare administration with the information needed to determine whether a healthcare liability claim is wholly frivolous.
In the case the Appellate Court was deciding, the Texas medical malpractice plaintiff had been treated by the defendant dermatologist who had performed two biopsies on her lower left leg after which the plaintiff complained that the biopsy site on her leg had expanded, that she was in extreme pain, and that a bad smell was emanating from the biopsy wound. Four days later, the plaintiff was diagnosed with a severe infection and was administered antibiotics. Because the infection was located deep in her skin, she subsequently had surgery to remove the infected tissue.
The plaintiff alleged in her Texas medical malpractice lawsuit that the defendant dermatologist was medically negligent in his failure to administer antibiotics to the plaintiff at the time of her last visit with the defendant. The plaintiff timely served on the defendant an expert report and curriculum vitae from her expert (an internist) that relied on the defendant’s medical records and photographs of the biopsy site before and after surgery to conclude that the defendant dermatologist negligently failed to administer antibiotics during the plaintiff’s last visit, opining that infections left untreated become harder to treat with antibiotics as time goes on and that if the defendant had administered antibiotics during the plaintiff’s last visit, she more likely than not could have avoided surgery. The plaintiff’s expert further stated that he was board certified in internal medicine, that he had previous experience diagnosing and treating skin infections with antibiotics under similar circumstances, and that the standard of care for treating infections was the same for dermatologists and internists.
The plaintiff subsequently filed with the court a supplemental report concerning her medical expert’s qualifications in which he stated that he had education and training for the diagnosis and treatment of skin infections as a result of biopsies, under the same or similar circumstances as in this case; that skin infections as a result of biopsies such as in this case are diagnosed and treated the same by internists and dermatologists; and, that the diagnosis and treatment of skin infections as a result of biopsies under the same or similar circumstances as in this case are equally developed in dermatology and internal medicine.
The defendant argued that the plaintiff’s expert report and supplemental report were deficient because the expert failed to establish that he is qualified to opine on the standard of care and causation issues applicable to skin infections: specifically, the expert is incapable of judging the defendant’s actions because the expert was an internist and never averred that he had experience working with dermatologists, never averred that he had treated patients with erythema nodosum or other skin conditions, never identified the specific infection or specific antibiotics necessary to treat the plaintiff’s infection, and never explained why the antibiotics the plaintiff received four days after last visiting the defendant were ineffective, thereby indicating the expert’s lack of qualifications.
The plaintiff argued that her case is not about the treatment of erythema nodosum but rather the treatment of a post-biopsy infection. Therefore, her expert is qualified to opine on the defendant’s actions because her expert has practical experience dealing with biopsy follow-up care and because the standard of care for treating infections is common to all medical subspecialties and applies equally to internists and dermatologists.
The Appellate Court held, “Given that knowledge of the treatment and management of infections is equally developed and applied in all fields of medical practice, including internal medicine, that [the plaintiff’s expert] averred he has dealt with the treatment of biopsy wounds before, and that [the plaintiff’s expert] is a licensed physician whose CV shows works in various hospital settings, we cannot say the trial court abused its discretion in determining he was qualified to render a report in this case.”
With regard to the defendant’s argument that the plaintiff’s medical expert’s report is defective because it fails to logically and in sufficient detail link the lack of antibiotics given by the defendant with the surgery the plaintiff subsequently required, the Appellate Court stated that it considers two factors in assessing whether a statement on causation is sufficient: (1) whether the expert established a logical, complete chain between a negligent act and the plaintiff’s injury; and (2) whether the report gave the trial court sufficient medical details to allow the court to decide if the case was frivolous.
The Appellate Court held that the plaintiff’s medical expert’s report established the causal chain by clearly explaining that infections that are left untreated become more difficult to treat with antibiotics as time passes, and that the defendant’s failure to administer antibiotics to the plaintiff was a substantial cause of the infection in her leg advancing to the point where surgery was required. In terms of logic, the expert’s report seamlessly links the defendant’s alleged breach of the standard of care to the plaintiff’s eventual need for surgery.
The Appellate Court further held that the plaintiff’s medical expert’s report section with regard to causation was sufficiently detailed to allow the trial court to assess whether the claim is wholly frivolous.
Source Simpson v. Barton, No. 08-16-00076-CV.
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