Expert Reports in Texas Medical Malpractice Lawsuits

In Columbia North Hills Hospital, Subsidiary LP v. Tucker, a defendant appealed the court’s denial of its motion to dismiss. The case arose when the plaintiff checked into the hospital with serious abdominal pain. Although she was discharged, she returned the same day and had to have a surgery. After surgery, she was transferred to a room with a note on her patient care plan saying that she had a high risk to fall. When she went to use the restroom three days later, she fell and a nurse found her on the restroom floor. She was discharged from the hospital, even though the injuries from the fall were serious, and she had to undergo surgeries to her back and neck because of them.

She sued the hospital and other defendants, alleging negligence and gross negligence. She attached a Nurse Dexter’s report to her petition. The defendants objected. She also served an expert report by Larry Kjeldgaard, but this report was late. She also amended her pleadings so that her suit would proceed only against the hospital.

The hospital moved to dismiss her case on the grounds that the Dexter report didn’t satisfy the legal requirements of § 74.351(a) for an expert report and that the other report was late. The trial judge sustained the defendant’s objections to the Dexter report but allowed the plaintiff to file a compliant report. She filed an amended pleading to which she attached reports from both experts.

The defendant objected to the Kjeldgaard report and filed a second motion to dismiss, which was also denied. The defendant appealed, arguing that the Kjeldgaard report hadn’t adequately addressed causation. Among other things, it argued that Kjeldgaard’s causation opinion was insufficient because it was conclusory.

In Texas, a claimant who is filing suit against a health care provider must serve one or more expert reports for each physician or provider against whom a claim is asserted within 120 days after filing the lawsuit. The expert reports need to fairly summarize the experts’ opinions about the standard of care, the provider’s failure to meet the standard of care, and causality between the failure and the injuries claimed. As to causation, an expert must be a physician who was otherwise qualified to render opinions on the causal relationship. Failing to serve the expert report within the deadline entitles a defendant to dismissal of the claim with prejudice, but if the report is inadequate, the court is only to grant a motion to dismiss if there was no good faith effort to comply with the statutory requirements.

What is a good faith effort? A report served in good faith informs the defendant of specific conduct that is the basis for the case and provides a basis for the judge to conclude there is merit to the suit. A report that only states conclusions about care, breach, or causation and does not explain the basis of the opinion linking facts and conclusions is deficient.

The appellate court found that Kjeldgaard’s report was deficient as to causation because it was conclusory. It supplied neither the ‘how’ nor the ‘why’ of causation. The report stated his qualifications and the factual background but didn’t link the ultimate opinion about causation with the facts presented. The report included a section about how the plaintiff had been given a blood thinner three days before falling, and it stated that her low blood pressure and low potassium levels probably contributed to the accident. Other than that, there was no explanation of how and why these conditions were caused by breaches of care by the nursing staff and how and why these caused her to fall and suffer injuries. The court concluded that the trial court had abused its discretion by denying the hospital’s second motion to dismiss.

If you are hurt due to a health care provider’s negligence, it’s important to retain attorneys with experience in medical malpractice. The experienced San Antonio medical malpractice attorneys at Carabin Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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