Texas law places a heavy burden on medical malpractice patients who filed lawsuits against healthcare providers. Unlike any other type of case, these plaintiffs must produce one or more medical expert reports early in the litigation. Failure to meet the exacting standards or deadlines results in mandatory dismissal of the case and an award of attorney’s fees to the defendants.
As a Houston, Texas medical malpractice attorney, I am continuously working with physician and nursing experts to review and investigate cases. From the very start, and evaluating a potential new case, I put significant thought into whether we would likely be able to find a supportive expert witness.
Even after getting an expert witness, though, who is supportive of the plaintiff’s case, lawyers for doctors and hospitals who are defendants in lawsuits typically challenge the sufficiency of expert reports.
In other words, even though there is an expert report from a medical doctor, some defendants pursue frivolous motions that argue that the report is too vague to give them proper notice of the claims. I often find these arguments to be a bit bizarre, considering that the defendants are healthcare providers themselves.
The Baty v. Futrell case
A recent Texas Supreme Court case illustrates this type of challenge. In the Baty v. Futrell case, on February 2, 2018, the court released a rare opinion that was in favor of a patient, instead of a healthcare provider.
In that case, the patient went to an ophthalmologist for cataract surgery on her left eye. As is often the case in modern medicine, the anesthesia care was provided by a certified registered nurse anesthetist (CRNA) rather than an anesthesiologist physician.
The CRNA administered anesthesia by a procedure called a retrobulbar block, which involves using a needle to inject the anesthetic medication into the space behind the globe of the eye. In the lawsuit, the patient alleged that the CRNA stock the needle into her left optic nerve, injuring it, and causing permanent loss of visual acuity, partial blindness, and loss of depth perception in her left eye.
The patient’s attorney met the legally-required time deadlines to serve the defendants with an expert report, as required by Texas Civil Practice & Remedies Code chapter 74. Once an expert report is served, the defendants have 21 days to file any objections.
The CRNA’s attorney filed objections to the patient’s expert report, arguing that it lacked sufficient detail. With the agreement of the patient’s lawyer, the trial court cited order allowing an additional 30 days to fix any deficiencies identified by the defendants’ objections.
As is often the case, from my observation, the defendants were still not happy with the new report. Indeed, the CRNA promptly filed new objections to the report.
This reminds me of a laughable incident that I saw in district court once several years ago in Houston. I had sued multiple doctors and a hospital on behalf of my client. Some of the defendants “canned” objections to challenge that the adequacy of the expert report that I had produced on behalf of my client.
At the oral hearing on the defense objections, I pointed out to the judge that one of the defense lawyers actually have the audacity to include in her objections that her client was not only objecting to the adequacy of the expert report that had been produced, but also objected to any future reports that had not even been written. How frivolous and absurd!
Back to the Baty case. In its opinion, the Texas Supreme Court discussed well-settled law, which requires a medical malpractice plaintiff’s Ch. 74 expert report to state the standard of care (what should have been done), who violated the standard of care and how, and how it caused injury or harm to the plaintiff.
The court noted that the plaintiff’s medical expert offered these opinions:
“[C]omplications such as globe penetration and optic nerve injury are more common when blocks require augmentation (additional needle sticks),” as was the case here, because “the initial injection volume can distort the anatomy of the orbital structures, and lead to injury by the needle on the subsequent attempt. For this reason, many ophthalmic surgeons augment an inadequate block by using a blunt cannula inserted via a conjunctival incision, rather than a needle.”
The standard of care for an ordinarily prudent CRNA administering a retrobulbar block requires “administering the block in the proper manner to preclude injuring the delicate structures of the orbit, including the globe and optic nerve.”
Futrell breached the standard of care and was negligent in “[f]ailing to ensure that the retrobulbar block anesthesia was performed on Mrs. Baty with sufficient competence and skill to avoid damaging her optic nerve” and in “[i]rreparably damaging Mrs. Baty’s left optic nerve during the administration of the retrobulbar block by sticking it with the retrobulbar needle.”
The court took notice of a comment by the patient’s lawyer, which I enjoyed, basically that the standard of care “is fairly basic” and boils down to “do not stick the optic nerve with anesthesia needle.”
The court ultimately ruled that the patient’s expert report was sufficient because it states a specific action—sticking the optic nerve with the retrobulbar needle—that a CRNC was supposed to avoid doing when administering the anesthesia.
The decision was 6-2 in favor of the patient, with two Supreme Court justices disagreeing and filing a dissenting opinion.
We are here to help
In other articles, I have compared the medical malpractice landscape in Texas to navigating a minefield. This is why it is so important for injured patients and family members to hire a competent, experienced medical malpractice lawyer.
We are here to help you. If you or someone you care for has been seriously injured as a result of medical malpractice, call Painter Law Firm, in Houston, Texas, at 281-580-8800, for a free consultation about your potential case.
Robert Painter is a medical malpractice lawyer 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, doctors, surgeons, and other healthcare providers. Martindale Hubbell recognized him with the prestigious AV designation. In 2017, H Texas magazine named him among Houston’s top lawyers. Also in 2017, the Better Business Bureau honored Painter Law Firm with its Award of Distinction.