Hiring an experienced Houston medical malpractice attorney can help you satisfy the tricky Texas expert requirement
The type of expert your lawyer chooses can mean the difference between success and dismissal
This morning, I received an email from a potential client who is facing an imminent statute of limitations deadline in a potential medical malpractice case. Unfortunately, she hired an attorney who does not typically handle medical malpractice cases and only recently learned that he was unable to find an expert to support the case.
The medical facts in her case are sad. A woman went to a Houston hospital for routine hysterectomy and was discharged the day after surgery despite red flags in her lab work. Two days later, she was re-admitted to the hospital and diagnosed with sepsis, which had already caused multi-organ failure. She ultimately lost all four of her limbs, leaving her with no arms or legs incapacitated for life.
Texas law on preliminary expert reports in a nutshell
Under Texas law, the general statute of limitations for medical malpractice cases, like all negligence claims, is two years from the date of the negligence. There are some different factors that may extend the date, but they are very factually-specific and need to be analyzed by an attorney.
When it comes to medical negligence cases, Texas law imposes unusual requirements on plaintiffs. After the lawsuit is filed and properly served, and each defendant files an answer, a plaintiff has 120 days from the date each defendant answers to serve an “adequate” expert report and curriculum vitae (resume) on each defendant. These preliminary reports are often called “Chapter 74” reports and are intended to provide defendants with fair notice of the allegations made against them and to assure the court that the case is not frivolous.
Speaking of frivolous, for many years after this requirement was enacted, attorneys for defendants filed objections to virtually every Chapter 74 expert report, alleging that they were in some way inadequate. While that practice has waned somewhat, objections still happen from time to time.
Generally speaking, for a physician defendant, an “adequate “expert report will be written by a physician with direct training and experience in the medical area at issue. Further, the report must describe with great particularity the applicable standard of care, how it was breached by the defendant, and how that caused harm to the plaintiff.
For non-physician defendants, a report describing the standard of care and how it was breached may be written by a non-physician. An additional report from a physician will be necessary to detail how the sub- standard care caused harm to the plaintiff. Only a doctor can provide this type of opinion.
Once a plaintiff serves Chapter 74 expert reports on a defendant, the defendant has 21 days to file objections. If the trial court sustains the objections, the plaintiff may be given one 30-day period to cure or fix any areas of concern. If the trial court still finds the expert report to be inadequate, then the court will dismiss the case and, upon motion of the defendant, winner an order requiring the plaintiff to pay the defendant’s attorney’s fees.
Selecting the right expert
When Painter Law Firm is hired to handle a medical malpractice case, we immediately begin working to obtain all the medical records and then find an appropriate medical expert to review them. This can be a considerable undertaking. While it is sometimes possible to obtain medical records within a month or two, sometimes it can take four months or more because of slow, unresponsive medical records departments that are in no hurry to help anyone.
Once we receive the records, our legal nurse organizes, tabs, and prepares them for a medical expert. At that point, I review them with the nurse and we decide on what type of expert to hire.
Experienced medical malpractice attorneys know that selecting the right type of expert is of critical importance to pursuing a case.
Texas law does not require a plaintiff to have a medical expert from the exact same specialization as a defendant in all cases. Some inexperienced attorneys mistakenly believe, though, that any person within “M.D.” after his or her name will suffice.
I always recommend the patients who are injured by medical negligence hire an experienced medical malpractice attorney, rather than a generalist attorney or someone who practices in other areas of the law.
The determination of whether a medical expert is competent to testify in a particular case is very fact-specific and requires careful analysis. Further, attorneys must work closely with the experts to make sure that their qualifications and experience are adequately described in the Chapter 74 expert report.
I cannot overemphasize how important these minute details are.
A Houston appellate court recently held that an anesthesiologist was qualified to testify as to the standard of care of a plastic surgeon, where the facts of the case showed that the negligence at issue was in the post-operative care, rather than the surgical procedure itself.
This week, the Houston First Court of Appeals released another opinion involving a plastic surgeon. In this new ruling, the court found that an ophthalmologist was not qualified to provide a standard of care opinion for a plastic surgeon and a plastic surgeon’s assistant performing surgery on a fractured facial bone. The case is styled Thomas Kevin Cook, M.D., Craniofacial and Plastic Surgery Center—Houston, and Qijun Song, CSA v. Kathleen Broussard, Case No. 01-18-00943-CV, Houston First Court of Appeals. The case was appealed from the 164th District Court, in Harris County, Texas, Cause No 2013-32676.
In the Cook case, the patient fell and had a complex fracture of her facial bone, including a bone in her eye socket. She went to surgery with a craniofacial surgeon, assisted by a certified surgical assistant. During the surgery, the patient’s lower eyelid was torn.
In an attempt to meet the requirements of Texas Civil Practice & Remedies Code chapter 74, the attorney for the plaintiff (patient) served the defendants with a report and curriculum vitae from a board-certified ophthalmologist.
The proposed expert was a professor of ophthalmology at a medical school and taught ophthalmic surgical techniques to physician residents and fellows. In short, his opinion was that the standard of care required the surgeon and surgical assistant to repair a blowout fracture of the orbit without causing further injury to the patient. That seems straightforward enough.
The defendants filed a motion to dismiss the lawsuit, challenging the adequacy of the ophthalmologist’s expert report, and the trial court granted a 30-day extension to cure certain defects. Under Texas law, only one such extension is allowed. After the plaintiff served a supplemental report from the ophthalmologist expert, the defendants re-urged their objections and alleged that the proposed expert had not shown qualifications to testify on the performance by plastic surgeon and surgical assistant of the plastic-surgery procedure at issue. The trial court denied the motion to dismiss, and the defendants appealed the ruling.
The appellate court discussed well-established case precedent that not every licensed physician is qualified to testify about every medical question. The First Court of Appeals also noted that a physician may be qualified to provide an expert report even when his or her specially differs from that of the defendant there is a showing of practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those confronting the malpractice defendant or if the subject matter is, and is equally recognized and developed in all fields of practice.
As a practical matter, it can get very expensive to hire multiple experts to provide reports and opinions when there are several defendants from different specialties.
In some cases, various medical specialists botched the patient’s care in the same way. In those circumstances, it may be possible to hire one medical expert from one of those specialties to testify as to all the specialties. To succeed in that plan, in my experience, the expert must describe in great detail and particularity his or her experience with the specific issue at hand and that the care at issue is handled by physicians in different specialties.
In the Cook opinion, the appellate court was critical of the ophthalmology professor’s proposed expert report because it did not discuss his specific qualifications concerning the accepted standard of medical care for a plastic surgeon and surgical assistant on a fractured facial bone.
The court found that the mere fact that the bone was near the eye and part of the eye socket does not change the reality that it is bone surgery, not eye surgery, at issue in the case. The opinion notes that, “An eye-socket bone is distinct from the eye itself.”
Not trying to be a Monday morning quarterback, I can say that this outcome may have been avoidable for the plaintiff with careful planning and attention. This is particularly true because a medical malpractice attorney for the plaintiff gets two bites at the apple—one in the initial Chapter 74 report and another, one-time 30-day extension of the deadline to cure any defects.
As a practical matter, the plaintiff’s attorney likely has more than 30 days to cure any defects. The reason is that an oral hearing to consider the objections is not usually set immediately. This typically provides many weeks or months before the parties will be in front of the court to argue over the objections.
One way to avoid a bad outcome, like in the Cook case, is to hire a craniofacial surgeon to write the expert report. In my view, that would have been the best course, if possible, because such a physician would be unquestionably qualified. Sometimes, though, this is simply impossible because of the conspiracy of silence in some medical specialties. Indeed, in many medical specialties and subspecialties, it is extremely difficult to find a physician willing to testify for a patient in a medical malpractice case.
A second way to avoid such a bad outcome is to select an expert in a different specially with significant experience in the exact issue at hand. In the Cook case, the ophthalmology professor could have explicitly described his experience—if he had it—in repairing bone fractures in the orbital socket or participating in similar surgeries with craniofacial surgeons. In the latter situation, the proposed expert may have had experience handling the part of the surgery involving the eye and the craniofacial surgeon and assistant handled the bone fracture portion. In that the specific care at issue in the Cook case appeared to be protecting the eyelid from injury during surgery, I believe that a surgeon and an ophthalmologist could both be qualified to testify as to each other’s standard of care for these particular facts.
Selecting the right attorney
Because medical malpractice cases are so regulated and restricted in the State of Texas, I believe it is important for patients and family members to hire an experienced medical malpractice attorney to handle such claims.
As a former hospital administrator, I have devoted my legal career to handling medical negligence cases. If you or someone you love has been seriously injured by medical or hospital malpractice, click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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Published in the July/August 2018 edition of "The Houston Lawyer" magazine