Call us today at 281-580-8800 or email us at

Texas Civil Practice & Remedies Code Section 74.351 requires medical negligence plaintiffs to serve medical expert reports at the beginning of a lawsuit Contact Now

Texas Supreme Court: Medical malpractice expert reports must address cause-in-fact and foreseeability of harm

Texas Civil Practice & Remedies Code Section 74.351 requires medical negligence plaintiffs to serve medical expert reports at the beginning of a lawsuit

As a Houston, Texas medical malpractice lawyer, I have to start thinking from the very beginning about how to comply with some very up-front legal requirements that apply only to cases involving hospitals, doctors, and healthcare providers.

One of the big ones is the initial expert report mandated by Texas Civil Practice & Remedies Code Section 74.351. In short, medical malpractice plaintiffs must serve a medical expert report on defendants within 120 days of each defendant filing an answer in the lawsuit.

These expert reports must be written by physicians or other relevant healthcare providers (although at least one report must be from a licensed physician), very early in the case. Typically, there is no information available to the experts except the medical records, because a discovery stay applies until the expert report requirement is met. It’s sort of like putting the cart before the horse.

These so-called Chapter 74 expert reports have to meet so many technical requirements that it really pays off for injured patients to hire a competent, experienced Texas medical malpractice attorney to guide them through the process.

In my experience, most physician experts like to review the medical records and then explain what happened. This won’t cut it, though, when it comes to a mandatory Chapter 74 report. Instead, the report must slice up the opinion into individual statements defining: (1) the applicable standard of care (what the healthcare providers should have done); (2) how each defendant violated the standard of care; (3) proximate causation (how the medical errors, mistakes, and negligence caused harm); and (4) damages (the harms and losses that occurred).

In 2017, the Texas Supreme Court entered an opinion providing some more detail about additional bells and whistles necessary in the Chapter 74 report. The case is styled Columbia Valley Healthcare System, L.P. d/b/a/ Valley Regional Medical Center v. Maria Zamarripa, 526 S.W.453 (Tex. 2017), and addresses what level of detail is necessary for proximate causation in the preliminary Chapter 74 report.

The facts of the underlying case are tragic and sad. A mother in her third trimester was rushed by ambulance to Valley Regional Medical Center because she had a fever, vomiting, abdominal pain, and mild contractions.

A doctor saw the patient and ordered pain medications and antibiotics, a sonogram, a biophysical profile to assess the baby’s health, a sonogram, and an MRI. The tests showed that the baby was fine, but an MRI revealed that the mom had a very serious condition called placenta accreta. Expecting mothers with placenta accreta have a high-risk for very heavy bleeding during delivery because the placenta is abnormally attached to the wall of the uterus. The MRI did not show a placental abruption, another serious condition when the placenta detaches from the uterine wall, which cuts off oxygen and nutrients to the baby and causes the mother to experience heavy bleeding.

The doctors at Valley Medical Center decided to transfer by ambulance her to Corpus Christi Medical Center—Bay Area, which was 159 miles away. There were some serious traffic delays on the way and the mom’s condition deteriorated en route, experiencing a placental abruption and cardiac arrest. The baby was delivered stillborn and the mom died a short while later, both at the Corpus Christi hospital.

The plaintiffs filed a lawsuit and timely served Chapter 74 expert reports by an experienced OB/GYN physician and a labor and delivery registered nurse. Valley Medical Center timely filed objections to the adequacy of the expert reports. The hospital argued that because the decision to transfer the patient was on the part of a physician, not the hospital, then the plaintiff’s expert reports were insufficient to establish the required element of proximate causation.

The trial court denied the hospital’s objections and motion to dismiss. The hospital appealed the decision and it finally reached the Texas Supreme Court. The court accepted the petition for review because of a conflict among the intermediate appellate courts. Interestingly, the Corpus Christi Court of Appeals held, when it reviewed this case, that a Chapter 74 report did not need to address proximate causation.

The Texas Supreme Court disagreed, noting that proximate causation, an essential element of a medical negligence claim, has two mandatory elements: (1) foreseeability; and (2) cause-in-fact. For a negligent act or omission to have been a cause-in-fact of the harm, the act or omission must have been a substantial factor in bringing about the harm, and absent the act or omission (but for the act or omission) the harm would not have occurred. The court then summed it up that, “This is the causal relationship between breach and injury that an expert report must explain to satisfy the Act.”

Since this opinion, Houston’s First Court of Appeals interpreted its significance as follows: “The Texas Supreme Court resolved the issue while this appeal was pending when it issued Zamarripa and held that an expert report must address both cause-in-fact and foreseeability. 526 S.W.3d at 460.”

None of this is a major revelation to me because, as an experienced Texas medical malpractice attorney, I have always made sure that medical experts that I have retained to prepare Chapter 74 reports always address proximate causation. While the Texas Supreme Court’s opinion does not require any specific “magic words” to be contained in a report, I think it is a good idea for Chapter 74 medical experts to address both foreseeability and cause-in-fact in their reports.

We are here to help

If you or a loved one has been seriously injured or even died because of poor medical, surgical, or hospital 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.

// Read full biography
// Read more expertise by Robert Painter

Discover More