In its Memorandum Opinion dated March 30, 2017, the Court of Appeals Thirteenth District of Texas Corpus Christi – Edinburg (“Appellate Court”) remanded the Texas medical malpractice case to the trial court to determine whether to grant the plaintiff a thirty-day extension to cure the deficiencies in her medical malpractice expert’s report.
The Alleged Underlying Facts
The Texas medical malpractice plaintiff alleged that she was treated by the defendant nurse practitioner for a urinary tract infection, a yeast infection, and vaginosis based on urinalysis results. About five days later, the plaintiff returned to the defendant nurse practitioner with worsening symptoms that led to the defendant performing a pelvic examination during which she exclaimed to students who were present in the room observing the examination, “that’s gonorrhea,” which the plaintiff alleged was a wrong diagnosis.
The plaintiff subsequently filed her Texas medical malpractice lawsuit against the nurse practitioner, alleging failure to disclose risks, lack of consent, breach of confidential communication, intentional infliction of emotional distress, intrusion on seclusion, public disclosure of private facts, and negligent misrepresentation.
The plaintiff served on the defendant the report of an expert, a medical doctor, in her effort to comply with section 74.351 of the Texas Civil Practice and Remedies Code. The defendant argued that the plaintiff’s expert’s report did not comply with Texas law with regard to the requirements concerning medical malpractice expert reports, and moved to dismiss the Texas medical malpractice case. The trial court denied the defendant’s motion to dismiss, and the defendant filed an interlocutory appeal.
The Appellate Court Decision
The Appellate Court found that the plaintiff’s medical malpractice expert’s report failed to establish that he (a medical doctor) is qualified to testify regarding the standard of care applicable to the defendant, who is a nurse practitioner.
Texas Civil Practice and Remedies Code Section 74.402
Tex. Civ. Prac. & Rem. Code Ann. Section 74.402 lists three specific qualifications an expert witness must possess in order to provide opinion testimony on how a health care provider departed from accepted standards of health care: the expert must be practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; the expert must have knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and, the expert must be qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
In the case it was deciding, the Appellate Court held that the plaintiff’s expert failed to state that he is familiar with the standard of care applicable to nurse practitioners treating a patient presenting with multiple symptoms, including painful urination, and diagnosing venereal diseases.
The Appellate Court further held that the plaintiff’s expert failed to state that he has “knowledge, skill, experience, training, or education” telling patients the diagnosis of a venereal disease and whether an indelicate conveyance of such information may cause emotional distress.
The Appellate Court also held that the plaintiff’s expert failed to explain how the defendant nurse practitioner’s breach of the standard of care caused the plaintiff her post-traumatic stress disorder, depression, anxiety, and insomnia.
Nonetheless, the Appellate Court held that the plaintiff’s expert’s deficient report was not equivalent to “no report” and therefore exercised its discretion to remand the plaintiff’s Texas medical malpractice case to the trial court to determine whether to grant the plaintiff a thirty-day extension to cure the deficiencies that the Appellate Court found in her expert’s report.
Source McCoy v. Sandoval, 13-16-00520-CV.
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