The tough expert witness requirements for Texas medical malpractice plaintiffs

 

Hiring an experienced medical malpractice lawyer is important because of the harsh, quick penalties for not hitting the mark on expert witnesses

 
January 24, 2018

The 2003 round of tort reform imposed new expert witness requirements on health care related cases, in an effort to make some cases more difficult to pursue. As a Houston, Texas medical malpractice attorney, I have to deal with Texas law’s expert witness requirements every day. It is also a frequent topic of discussion with potential clients and our existing clients.

Expert witness requirements

Texas Civil Practice & Remedies Code chapter 74 requires a plaintiff who files a medical malpractice lawsuit in Texas to have the written support of one or more medical expert witnesses within a strict period of time. The written support consists of a “Chapter 74 Report” that details the expert’s opinions in the format of stating the standard of care, how each healthcare provider involved did not follow the standard of care, and how such violations proximately caused injury or death to the patient. The Chapter 74 report must be accompanied by the expert’s curriculum vitae, or resume.

In some cases, one expert will suffice, but in other cases more than one is required. The reason is that an expert offering critical opinions of a defendant healthcare provider must be familiar with the standards of care applicable to that defendant.

If the defendants are all physicians, then the expert must be a physician. The medical expert must be a licensed physician in any U.S. state, who was practicing either when the alleged negligence occurred or as of the date that the lawsuit was filed. Further, the expert’s practice area must be the same as the area at issue in the case or related to it. In other words, there may be more than one type of physician who participates in the care of a patient with a particular condition, and any one of them would do. For example, in an undiagnosed and untreated bedsore case, internal medicine/hospitalist, physical medicine, and wound care doctors may be involved.

If there is a non-physician healthcare defendant, like a nurse, then it requires additional consideration. Of course, a nursing expert witness could offer opinions about a nurse who works in the same or similar field. Sometimes, though, a physician can offer opinions, as well, in situations where the expert supervises or teaches nurses in an issue related to the case. For example, a wound care doctor who teaches or supervises nurses on how to identify compromised skin integrity would likely be qualified to offer nursing standard of care opinions in a decubitus ulcer case.

As I mentioned above, the last requirement in a Chapter 74 report is proximate causation—in other words, how did the defendant healthcare providers’ mistakes cause injury or death to the patient. That Chapter 74 report opinion must be given by a physician. Texas appellate reports require great detail on causation opinions and will not find opinions that jump to a conclusion to meet the standard.

A plaintiff must complete this process and serve the Chapter 74 report and curriculum vitae for one or more expert witnesses on each defendant within 120 days of the date that each defendant filed an answer in the lawsuit. The original law, passed in 2003, set the deadline at 120 days from the date the lawsuit was filed, but that allowed for defendant mischief in trying to dodge or evade service. The new law is an improvement, with the clock not running until the defendant is served and files an answer in court.

Speed can be dangerous

In some types of lawsuits, it may make sense to file a lawsuit immediately. It allows the plaintiff to get the claim moving quickly, seek injunctive relief (like a temporary restraining order or injunction), and conduct discovery. Discovery is the process where each side gets to ask questions under oath, request production of documents and evidence, and take depositions.

In medical malpractice cases, the better advice is to slow down and get your ducks in order.

Chapter 74 imposes a discovery stay on anything unrelated to getting a copy of relevant medical records until the expert report requirements are met. That means no interrogatories, requests for production, or depositions until the plaintiff serves a proper Chapter 74 report and curriculum vitae for one or more expert witnesses.

By the way, if the 120-day deadline is missed, the defendant can file a motion to dismiss the case. The law requires the judge to dismiss the case and also to award attorney’s fees, if requested by the defendant. I have seen some lawyers inexperienced in medical malpractice try to get an extension of the deadline, but they quickly learn—too late—that it is not allowed by the law.

A better way

In my experience as a medical malpractice lawyer, the better approach is to follow a step-by-step approach before ever filing the lawsuit. The first is to obtain a HIPAA release from the patient or representative and then order copies of all of the relevant medical records. Once we receive them, at Painter Law Firm, we have our in-house registered nurse consultant review, organize, and tab the records, to make them easier for an expert to review. Then, we locate the necessary experts and have them review the medical records. If the experts find negligence in the case, we put them to work on their Chapter 74 reports, and are then ready to file the lawsuit.

Of course, sometimes, for a variety of reasons, clients do not get to us in time for us to go through each step of this process before filing the suit. In those situations, if we have enough information to form a good faith opinion that medical negligence caused a serious injury, we will file the suit before the statute of limitations and give careful attention to the 120-day deadline to meet all of the legal requirements for our clients.

We are here to help

When it comes to the many requirements of pursuing a medical malpractice case in Texas, hiring an experienced attorney matters. For a free consultation about your potential case, call Painter Law Firm, in Houston, Texas, at 281-580-8800.

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Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who began his legal career in the health litigation department at a large Houston law firm, where he defended doctors, hospitals, and a medical school. He left that firm at the end of 2005, to start Painter Law Firm, where he has exclusively represented patients and families in medical malpractice and wrongful death cases. He applies his unique background to the benefit of his clients in investigating and litigating cases.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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