Texas law requires medical malpractice plaintiffs to produce one or more medical expert reports within 120 days of each defendant filing an answer and a lawsuit. The standards for these reports are demanding, requiring separate statements of the applicable standard of care (what should have been done), how the standard of care was violated (what wasn’t done correctly), and how those medical mistakes proximately caused harm to the plaintiff.
Once the plaintiff timely serves the preliminary expert reports, defendants have 21 days to file objections to their sufficiency. The legal stakes are high. If the court sustained a defendant’s objection, the case must be dismissed with an order compelling the plaintiff to pay the defendant’s legal fees.
The legal standard for trial and appellate courts to determine the sufficiency of a Chapter 74 preliminary expert report is whether it represents a good faith effort to inform the defendant of the healthcare conduct called into question and show the court that the claim has merit.
Some defendants, insurance companies, and their attorneys try to make this legal standard into something else. They argue that a report is insufficient unless it meets the same standard as a motion for summary judgment at trial. Time and time again, Texas appellate courts have ruled that this is the incorrect standard, but it doesn’t stop some defense teams from still trying to distort the law.
Bear in mind that this entire preliminary expert report process occurs in the context of a discovery stay, which prevents plaintiffs from being able to obtain any evidence other than the medical records. In some cases, this isn’t much of a problem, but in others it creates a significant hurdle.
Take, for example, a Dallas case that we are currently handling where the facility records make no reference to any complication or adverse event, despite the fact that a patient had a severe anaphylactic reaction to medication that required called 911 and ambulance transportation to a hospital. The patient died within an hour or so of the medication reaction.
The medical records are incredibly inadequate. They certainly violate the Texas legal standard that requires them to be a comprehensive record of the events and care provided to the patient. Yet, the discovery stay still applies.
This leads to the question of what a court is allowed to consider when a Chapter 74 preliminary expert report is questioned by a defendant. The lawn this is clear:
• Concerning qualifications, the proposed expert, the court is limited to reviewing the four corners of the expert report in the four corners of the expert’s curriculum vitae (CV) a or resume.
• Concerning standard of care, breach, and causation, the court is limited to reviewing the four corners of the expert report.
Sometimes plaintiffs want to testify at a hearing on Chapter 74 report objections or motion to dismiss, but testimony is not allowed. However, to the extent that the patient or family member has first-hand information about the care that was provided, Texas law allows experts to rely on that information in forming their opinions, based on an affidavit or conversation. This makes sense and is consistent with the normal practice of doctors and nurses in taking a patient history.
From the defense perspective, we encounter all kinds of creative ways that they try to get the court to consider additional information other than the four corners of the expert report. These are simply not allowed the Texas law, but again it doesn’t stop the defendants from pushing the envelope. Here are examples of impermissible things I’ve seen:
• Attaching as exhibits medical records that the defendant contends are inconsistent with the opinions in a Chapter 74 expert report served by the plaintiffs.
• Arguing in objections or motion to dismiss that the expert reached the wrong conclusion.
• Referencing amended (and, therefore, superseded) pleadings or prior expert reports.
We always respond to these types of disallowed arguments by redirecting the court’s attention to the only evidence that’s allowed in such inquiry—the four corners of the expert reports in the four corners of the experts’ resumes or CVs.
Fortunately, over the past several years Texas appellate courts have grown weary of health care defendant shenanigans in delaying justice and the trial process through meritless objections. In case after case, trial courts and appellate courts have focused on what they have described as the low threshold standard of making a good-faith effort.
Even so, the Chapter 74 expert report is both a considerable expense and undertaking. To comply with the demands of the statute (Texas Civil Practice & Remedies Code Chapter 74), many cases will require physician experts from multiple specialties, as well as experts in nursing or other healthcare fields.
If you’ve been seriously injured because of poor medical, hospital, or health care, then contact a skilled, top-rated Houston, Texas medical malpractice lawyer who understands how to successfully prosecute cases in this complex area of law.