The Supreme Court of Texas (“Texas Supreme Court”) held in its opinion filed on February 2, 2018 that the trial court and the lower appellate court were wrong in finding that the plaintiff’s expert report was deficient, stating “[b]ecause his report identifies the ‘conduct being called into question’—inserting the needle into the optic nerve—and provides the trial court a basis to conclude [the Texas medical malpractice plaintiff’s] claims have merit, it satisfies the good-faith effort the statute requires.”
The Underlying Facts
The plaintiff underwent cataract surgery on her left eye during which the defendant certified registered nurse anesthetist (“CRNA”) administered the anesthesia for the procedure by means of a retrobulbar block, which involves using a needle to inject anesthetic into the space behind the globe of the eye. The plaintiff alleged that during this process, the CRNA inserted the needle into the plaintiff’s left optic nerve, causing permanent nerve damage and vision loss in that eye.
The trial court determined that the plaintiff’s expert report was deficient and the lower appellate court held that the plaintiff’s expert report was inadequate as to the standard-of-care element because it was silent as to what an ordinarily prudent CRNA should have done in this instance and was therefore conclusory.
Texas Medical Liability Act
The Texas Medical Liability Act requires a Texas medical malpractice claimant to serve an expert report early in the proceedings on each party against whom a health care liability claim is asserted. TEX. CIV. PRAC. & REM. CODE § 74.351(a). If the claimant fails to timely serve an expert report, then on the affected health care provider’s motion the trial court must dismiss the pertinent health care liability claim with prejudice and award attorney’s fees. TEX. CIV. PRAC. & REM. CODE § 74.351(b). However, if the motion challenges the adequacy of an otherwise timely report, the court may grant the motion only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the Act’s definition of an expert report. TEX. CIV. PTRAC. & REM. CODE § 74.351(l).
The Texas Medical Liability Act 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 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. PTRAC. & REM. CODE § 74.351(r)(6).
The expert report need not marshal all the plaintiff’s proof, but it must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit. An expert report’s adequacy does not depend on the use of any particular “magic words” so long as it contains sufficient information within the document’s four corners to satisfy the following two-part mandate: (1) informing the defendant of the specific conduct called into question and (2) providing a basis for the trial court to conclude the claims have merit. Courts must view the expert report in its entirety, rather than isolating specific portions or sections, to determine whether it includes such information.
The Texas Supreme Court stated that the substance of the plaintiff’s medical malpractice claim is that the CRNA’s negligence in administering the retrobulbar anesthetic block caused permanent nerve damage and vision loss in her left eye. The Texas Supreme Court agreed with the defendants that the plaintiff’s expert report’s statement that the block should be administered “in the proper manner” in order to avoid injuring the eye, by itself, is a conclusory opinion.
The Texas Supreme Court stated, however, that in viewing the plaintiff’s expert report in its entirety, the standard of care described by the expert encompasses a more specific directive. After explaining that the inadequate initial block attempt increased the risk of optic nerve injury and that the block should be administered in the proper manner to preclude such injury, the expert opined that the defendant CRNA breached the standard by “sticking [the optic nerve] with the retrobulbar needle” “during the administration of the retrobulbar block.” The Texas Supreme Court stated that if “sticking [the optic nerve] with the retrobulbar needle” is a breach of the standard of care—which, in turn, requires administering the block in the proper manner—then the “proper manner” necessarily encompasses not sticking the optic nerve with the retrobulbar needle.
The Texas Supreme Court stated that the plaintiff’s expert report expressly references the specific conduct the plaintiff has called into question: inserting the needle into the optic nerve is not a result, good or bad; it is conduct that allegedly caused a bad result in this case, and it is this specific conduct that the expert opines falls below the standard of care.
The Texas Supreme Court held that the plaintiff’s expert report is sufficient because it states a specific action—sticking the optic nerve with the retrobulbar needle—the CRNA was supposed to avoid doing when administering the retrobulbar block. Further, the report highlights the known increased risk associated with the procedure following the initial inadequate block attempt, noting an alternative procedure that may be employed in that situation. The report’s express reference to an alternative method provides some indication of what the CNRA should have done differently. The Texas Supreme Court held that additional detail is simply not required at this stage of the proceedings.
The Texas Supreme Court further held that the plaintiff’s expert report represents a good-faith effort to summarize the causal relationship between the defendant CRNA’s failure to meet the applicable standard of care and the plaintiff’s injury: the expert concludes that the optic nerve was injured during the administration of the retrobulbar block based on the specific conduct of sticking the optic nerve with the retrobulbar needle and notes that other postulated causes of the plaintiff’s vision loss were ruled out by subsequent examination or ancillary studies, and that the plaintiff had previously undergone successful cataract surgery on her right eye.
Source Baty v. Futrell, No. 16-0164
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