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Dallas court of appeals rules in favor of patient/plaintiff on expert report

Hiring a competent, experienced medical malpractice attorney can mean the difference between a lawsuit and a dismissal

As a Texas medical malpractice lawyer, I handle cases all over the Lone Star State, including Houston, Dallas, Austin, San Antonio, Corpus Christi, and Waco.

One of the factors that I consider in deciding whether I can help someone injured by hospital or physician care is whether it is likely that we could secure the support of a medical expert very early in the case.

Unlike other types of negligence cases, Texas Civil Practice & Remedies Code chapter 74 requires medical malpractice plaintiffs to serve on all defendants one or more expert reports within 120 days of each defendant filing an answer in the lawsuit.

One of the challenges, in some potential cases, presented by this requirement is that Texas law puts the discovery stay in place until this requirement is met, except for obtaining medical records. In other words, the law front-loads a plaintiff’s obligation to have an expert explain the criticisms in the case in excruciating detail. Plus, this has to be accomplished without the necessary tools for a complete investigation.

Not just any expert report will do. A competent plaintiff’s attorney must select a medical expert who has direct knowledge and experience related to the specific type of health care at issue. In other words, any medical doctor will not do.

Even when a plaintiff timely serves on all defendants an expert report from an appropriate medical doctor, the scrutiny does not end. After defendants are served with the expert report, Chapter 74 gives them 21 days to file objections to the sufficiency of the expert report. Once the 120-day deadline passes, defendants may file a motion to dismiss, which, if granted, means the end of a plaintiff’s case and an order for the plaintiff to pay the defendant’s attorney’s fees.

This begs the question of what a sufficient expert report under Chapter 74 is. If we take for granted that the expert writing the report has appropriate qualifications, then courts look to whether the report gives fair notice of four topics: (1) standard of care: what should have been done; (2) violation of the standard of care: how the doctor or nurse missed the mark and made a mistake; (3) causation: how the mistake caused harm to the patient; and (4) damages: how the patient was harmed.

The Dallas Court of Appeals recently issued an opinion in Nexion Health at Duncanville, Inc. d/b/a Duncanville Healthcare and Rehabilitation Center v. McCray, Case No. 05-17-01350-CV, on Appeal from the 68th District Court of Dallas County, which gives some insight on some of the challenges that defendants make to statutory Chapter 74 expert reports.

In the McCray case, the patient was admitted to the Duncanville nursing facility with a past medical history of dementia, hypertension, and chronic kidney disease. Because of his condition, he was at a high risk of developing pressure ulcers. The plaintiff alleged that, despite this increased risk, the facility did not closely monitor and evaluate him for skin breakdown, resulting in the development of numerous pressure ulcers, including one that became infected.

To comply with the requirements of Texas Civil Practice & Remedies Code Section 74.351(a), the plaintiff timely served an expert report from a licensed physician who is board certified in geriatric medicine and internal medicine. The expert also serves as the medical director of a nursing home.

The expert report, in 14 pages, was critical of the nursing home for failing to monitor the patient’s fluid intake and implement necessary measures to maintain the patient’s skin integrity. The Chapter 74 report include the opinion that the nursing home‘s negligence caused the patient’s injuries and was a substantial contributing factor to his death.

The Duncanville nursing home filed objections and a motion to dismiss under Chapter 74, arguing that the plaintiff’s expert failed to describe and establish causation, meaning how the alleged negligence caused harm to the patient. The trial court denied the objections and motion to dismiss, and the nursing home appealed that ruling.

Under Chapter 74, defendants can delay a lawsuit by appealing a trial court’s denial of expert report objections and motion to dismiss. This is called an interlocutory appeal.

The Dallas Court of Appeals ruled against the nursing home, rejecting its argument that the plaintiff’s expert report did not explain how monitoring hydration and fluid intake would have prevented the patient’s dehydration. The court noted that the expert report identified a specific treatment that, in his opinion, would have saved the patient’s life if the treatment had occurred sooner. The expert stated that the nursing home’s  failure to monitor the patient’s hydration and fluid intake caused him to become severely dehydrated and monitoring it would have revealed the dehydration before it reached a critical stage. If the nursing home had ensured that he received earlier access to intravenous fluids, it would have prevented him from developing hyperkalemia (high potassium) and cardiac arrest that led to his death.

The Dallas appellate court specifically ruled that the trial judge did not abuse his discretion in ruling in favor of the plaintiff and against the defendant. These types of appellate decisions emphasize the importance of hiring an experienced Texas medical malpractice attorney who can “hit the ground running” in the important beginning stages of a lawsuit.

We are here to help

If you or a loved one has been seriously injured by hospital, nursing, physician, or surgical care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. 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. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.


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 an award-winning 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 all over Texas. Contact him by calling 281-580-8800 or emailing him right now.

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