Medical malpractice cases are unique under Texas law in that they require plaintiffs to have very early support of expert witnesses.
In most types of civil cases, a plaintiff could file a lawsuit the day after the negligence occurred. Experienced medical malpractice attorneys know that, when a healthcare provider commits negligence, there is a lot of work to do before filing suit.
The expert stopwatch
One of the preliminary requirements for medical malpractice plaintiffs is described in Texas Civil Practice & Remedies Code Section 74.351. Within 120 days after each defendant files an original answer in a lawsuit, the plaintiff must serve one or more expert reports, with the curriculum vitae or resume from each expert, on that defendant.
The expert report requirement includes identification of the applicable standard of care for each defendant, how each defendant fell beneath the standard of care, and how that proximately caused injury or damage to the plaintiff. While the opinion involving proximate cause must be written by a medical doctor, the type of provider who writes the standard of care report depends on who is being criticized. Under different circumstances, they may be written by a physician, nurse, or other healthcare provider.
One of the challenges for plaintiffs’ attorneys in medical malpractice cases is determining how many experts are necessary in order to pursue the lawsuit successfully. Of course, lawyers for defendants often argue for an unreasonable, costly standard of requiring plaintiffs to have a different expert for each defendant. Sometimes that may be necessary, but on many occasions it is not.
Appellate courts in Texas have determined that if the type of health care at issue is substantially developed in a variety of medical specialties, then a doctor in any of the specialties is qualified to offer standard of care opinions.
For example, I have been recently working on a case involving medical and nursing care to a patient who had a joint replacement surgery, resulting in development of pressure wounds. A physical medicine and rehabilitation doctor, wound care physician, and nurse practitioner were all involved in the negligent care. On behalf of my client, the plaintiff and patient, I designated an internal medicine hospitalist as our physician expert on standard of care for all of those specialties, as well as causation.
Once the plaintiff’s expert report is served, the defendant has 21 days to file objections to the sufficiency of the report, including the qualifications of the expert.
If the court ultimately decides that the expert report is insufficient—and the plaintiff does not fix any defects identified by the court if one 30-day extension is granted—then, upon motion by the defendant, the court must dismiss the case. Even worse, in this situation, the court must enter an order requiring the plaintiff to pay the defendants attorney’s fees.
Armenta v. Jones, Houston First Court of Appeals, March 1, 2018
A recent memorandum opinion out Houston’s First Court of Appeals illustrates the complex issues involving expert reports. Fortunately, this common-sense appellate decision is favorable to plaintiffs and provides an outline for experienced medical malpractice lawyers to qualify certain medical experts to give standard of care opinions for multiple medical specialties.
In the Armenta case, a plastic surgeon performed reconstructive surgery on the patient who had previously undergone a mastectomy of both breasts. The day after the reconstructive surgery, the plastic surgeon had to take her back to surgery emergently to restore blood circulation.
Shortly after the emergency surgery was complete, the patient’s oxygen levels dropped and she had breathing problems. The patient went on to experience respiratory and cardiac arrest, and suffered from brain damage from a prolonged lack of oxygen. She was removed from mechanical life-support and died.
In that lawsuit, the patient’s wrongful death beneficiaries, her husband and children, sued the hospital, three anesthesia practice groups, the surgeon, and the anesthesiologist, alleging that they failed to restore her airway and breathing promptly.
In an effort to comply with the medical expert requirements imposed by Texas law, the plaintiffs served the surgeon with an expert report written by a board-certified anesthesiologist. In short, the anesthesiology expert had the opinion that the anesthesiologist should have immediately ventilated the patient if respiratory depression and/or arrest occurred, and that the failure to do so caused injury to the patient.
The anesthesiologist filed timely objections to the report, arguing, among other things, that the anesthesiologist lacked expertise to provide and opinion on the standards of care applicable to a plastic surgeon. The trial court, in Fort Bend County, Texas, denied the plastic surgeon’s objections and motion to dismiss, and the physician appealed the ruling.
Prior legal precedent has long-established that a medical expert must do more than show that he or she is a physician, but does not need to be a specialist in the particular area of the profession of the defendant. Instead, the question goes to whether the medical expert’s expertise goes to the very matter on which he or she is to give an opinion.
The First Court of Appeals noted that a doctor may be qualified to provide an expert report even when his or her specialty is different from that of the defendant if the expert has practical knowledge of what is usually and customarily done by other practitioners under similar circumstances or if the subject matter is common to an equally recognized and developed in all fields of practice.
The court then proceeded to look at the qualifications of the plaintiff’s proposed anesthesiology expert.
After completing medical school, the expert completed a residency and five fellowships in anesthesiology. He held numerous professional appointments including acting as the Medical Director of Perioperative Services at a university medical center and taught as a clinical professor of anesthesiology.
In addition, the anesthesiology expert report reflected that his experience included consulting with surgeons, evaluating patients, intubating patients (inserting breathing tubes), monitoring patients post-operatively, and extubating patients (removing breathing tubes). The expert summed it up that he was “familiar with the standards of care for anesthesiologists, certified nurse anesthetists, and other healthcare providers involved in the postoperative care for patients receiving general anesthesia.”
Based on this evidence, the appellate court concluded that, to the extent that the anesthesiology expert stated standards of care regarding matters common to and equally recognized and developed in all fields of practice, the fact that he is an anesthesiologist and not a plastic surgeon does not disqualify him from rendering the required opinion.
When it comes to hiring a medical malpractice attorney, experience matters. That experience comes to play very early-on in the development of the potential case in the attention and care given in selecting an appropriate expert witness.
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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.