In its Memorandum Opinion filed on March 21, 2017, the Court of Appeals Fifth District of Texas at Dallas (“Appellate Court”) held that the medical malpractice plaintiff’s expert’s report was deficient because it did not satisfy the statutory element of causation by setting out a fair summary of the basis of his opinion as to the causal relationship between the purported breach of the standard of care and the plaintiff’s injuries and damages. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6).
The Underlying Facts
The Texas medical malpractice plaintiff was diagnosed on March 8, 2014 by the defendant surgeon with right and left inguinal hernias for which the defendant recommended a bilateral laparoscopic surgical procedure to repair the hernias which he performed on March 27, 2014. During the procedure, surgical mesh was placed over the hernia but extra mesh was left inside the abdominal cavity after the cavity was deflated and the incision closed. The plaintiff alleged that the surgical mesh was negligently placed or inserted in a way that made it highly susceptible to infection and complications.
The plaintiff alleged that he followed the post-operative instructions provided by the defendant. At his follow-up visit with the defendant surgeon on April 2, 2014, the plaintiff reported bloody bowel movements, positional fever, and a high level of pain when lying on his left side. The defendant noted there was swelling and bruising in the plaintiff’s scrotum but told the plaintiff he was doing well despite his severe pain. The plaintiff was told to schedule another follow-up appointment during May 2014.
On April 8, 2014, the plaintiff contacted the defendant to advise him that he continued to have extreme abdominal pain. The defendant advised the plaintiff to go to the emergency room, where he was diagnosed with abdominal abscesses and advanced-stage sepsis. The plaintiff was transferred to another hospital where fluid was drained from his pelvic area on multiple occasions during his hospitalization from April 8 to May 19, 2014. Subsequently, the plaintiff was in and out of hospitals for months and continued to experience abdominal pain and limitation of his ability to function in connection with the activities of daily life.
The plaintiff filed his Texas medical malpractice lawsuit against the surgeon and his medical practice alleging that the surgeon’s negligent acts and omissions proximately caused his injuries and damages. The defendants moved to dismiss the plaintiff’s Texas medical malpractice lawsuit arguing that the plaintiff’s required expert report was deficient (an expert report is a written report 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 of care, and the causal relationship between that failure and the injury, harm, or damages claimed).
The Appellate Court stated that the issues it had to decide were whether the expert’s report provided a fair summary of his opinions regarding the applicable standard of care, the manner in which the care rendered by the defendant purportedly breached the standard of care, and the purported causal relationship between the alleged breach of the standard of care by the defendant and the plaintiff’s injuries and damages.
The Appellate Court concluded that the plaintiff’s expert’s opinions regarding the standard of care were not conclusory and provided sufficient specificity with regard to the care that the expert opined the defendant should have given, and therefore the trial court did not abuse its discretion in concluding that the expert’s report sufficiently addressed the statutory element of the standard of care.
The Appellate Court further concluded that the trial court did not abuse its discretion in concluding that the expert’s report sufficiently addressed the statutory element of breach of the standard of care (the expert set forth in his report a fair summary of his opinion concerning the manner in which the care rendered by the defendant failed to meet the standard of care, that is, by failing to protect the sigmoid colon during the bilateral laparoscopic inguinal hernia repair).
However, the Appellate Court held that the expert’s report failed to provide a fair summary of the basis of his opinion on the statutory element of causation and merely opined in a conclusory manner that, as a result of the injury to the sigmoid colon, the plaintiff developed abscess and infection in the area of the hernia repair and consequently underwent various procedures over more than one year, including the insertion of drains, administration of intravenous antibiotics, performance of a sigmoid colectomy, and resection of the hernia mesh. In short, the expert’s report failed to supply the “how and why” of a causal relationship between the defendant’s purported breach of the applicable standard of care and the plaintiff’s injures and damages based on the facts of the case.
Nonetheless, the Appellate Court stated that because the plaintiff has not been given an opportunity to cure the deficiency regarding causation in his expert’s report, and because the expert’s report is not so deficient as to constitute no report at all, the Appellate Court remanded for the trial court to consider granting a thirty-day extension of time to allow the plaintiff to attempt to cure the deficiency in the expert’s report regarding the statutory element of causation.
Source Hendricks v. Perales, No. 05-16-01258-CV.
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