Most people who come to Painter Law Firm to meet about a potential medical malpractice case are surprised to learn about the burdensome requirements of Texas law to get a case off the ground.
There are two critical matters that must be dealt with at the beginning.
First, Texas law requires a medical malpractice plaintiff to send a notice letter and released to obtain medical records on all potential defendants at least 60 days before filing a lawsuit.
Second, after the lawsuit is filed, the plaintiff must serve one or more written medical expert reports that describe the standard of care, what went wrong, and how it harmed the plaintiff. The report’s deadline is 120 days after each defendant files an official answer in the lawsuit.
The Texas Supreme Court recently entered an opinion in a medical malpractice appeal involving this second expert report requirement.
New Texas Supreme Court case
On November 16, 2018, the Texas Supreme Court entered its opinion in the case styled Sue Abshire v. Christus Health Southeast Texas d/b/a Christus Hospital—St. Elizabeth, Case No. 17-0386. The case was on appeal from the Ninth Court of Appeals, in Beaumont, Texas.
The facts of the case are terribly sad. A lady was very responsible and trying to get the care that she needed but ended up as a paraplegic.
According to the plaintiff’s medical expert, this could have been avoided if the nurses had properly noted and reported on her medical history. Taking a medical history is a responsibility shared by nurses and doctors. It involved interviewing the patient, and sometimes family members, about the patient’s past illnesses, conditions, diagnoses, and medications. In this lady’s case, she had been diagnosed by a significant condition that the doctors needed to know about.
Instead of taking responsibility for the care that this lady received at Christus Hospital—St. Elizabeth, the defendants tried to get the trial court to dismiss the case right out of the gate.
What happened to this lady?
This all started with a visit to the emergency room at Christus Hospital—St. Elizabeth, where she complained of back and chest pain. A doctor ordered two EKGs, which were normal. She was discharged the next day with instructions to see a cardiologist. Oddly, the doctor did not evaluate her spine and did not note in her medical history that she had brittle bone disease (osteogenesis imperfecta).
The day after her discharge, she returned to the emergency room because she was having problems breathing as well as chest pain. This time, the doctor made note that she had brittle bone disease, but still only ordered a chest x-ray and then discharged her from the hospital the same day.
The next day, this patient returned to Christus Hospital—St. Elizabeth again. This time, she told the emergency providers that she was experiencing pain in her chest, shoulder, neck, and back. The doctor noted that she had brittle bone disease, and sent her home with diagnoses of constipation, musculoskeletal pain, and pleurisy (inflammation of the tissue lining in the lungs, which can cause chest pain and difficulty breathing).
Less than a week later, the patient was back in the emergency room, this time by ambulance. Once again, she complained of shortness of breath, chest pain, and back pain. The doctor did not make note of her brittle bone disease, but ordered another chest x-ray, which showed degenerative changes in her shoulders and spine. They kept her in the hospital for three days and then discharged her with no further musculoskeletal assessment.
The patient’s fifth visit to the emergency room was the day after she was discharged from the hospital. By then, she had weakness in her legs and problems walking. She was transferred to HealthSouth Rehabilitation Hospital, where she complained of what she described as “electrical voltage” shooting down her shoulders, back, and legs. She also told him that she had severe leg weakness and had lost control of her bowel and bladder functions. A doctor at the rehab facility planned on an MRI of her lumbar spine, but in the meantime started her on physical therapy.
Of course, physical therapy didn’t work out, so she was sent back to Christus Hospital—St. Elizabeth for further evaluation. Incredibly, once again, the healthcare team there wanted to discharge her from the hospital. Her rehabilitation doctor stepped in and had her transferred to another local hospital, Baptist Beaumont.
The doctors at Baptist Beaumont ordered a spine MRI, which showed that she had a compression fracture of her T5 vertebrae. Tragically, this untreated compression fracture had rendered this lady a paraplegic and took away the control of her bowel and bladder function.
What did the lower courts do?
The plaintiff sued Christus Hospital—St. Elizabeth and two physicians for medical negligence.
To satisfy the requirements of Texas law (Texas Civil Practice & Remedies Code Section 74.351), the plaintiff served an expert report from Dr. Lige Rushing, a physician who is board certified in internal medicine, geriatrics, and rheumatology. I know Dr. Rushing and have used him as a medical expert before. Dr. Rushing knows what he’s talking about—that I can tell you.
The hospital objected to Dr. Rushing’s report. Texas law allows a defendant to file objections within 21 days of receiving the preliminary report. The hospital argued that Dr. Rushing’s report was vague and did not adequately define the standards of care, how the hospital messed up, and how the hospital caused any damages or injuries to the patient.
The trial court judge initially agreed with the hospital but allowed the plaintiff an opportunity to address the deficiencies. Texas law allows trial courts to grant plaintiffs a single 30-day extension to correct any problems. In this case, the plaintiff did so, but the hospital still wasn’t happy.
The hospital objected again and asked the court to dismiss the case, but the court refused to do so. The hospital appealed, and the Beaumont Court of Appeals reversed and dismissed the case.
The plaintiff appealed to the Texas Supreme Court, which stepped in and found in favor of the plaintiff.
The Supreme Court’s ruling
The court noted that the hospital’s main objection focused on causation, and that the legal standard requires the medical expert to explain the “how and why” the alleged negligence caused the injury in question. The court had previously analyzed this standard in its prior significant opinion styled Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010).
To satisfy the “how and why” requirement of causation, the expert doesn’t have to prove the entire case or account for every known fact. All that’s needed is to make a good-faith effort to explain factually how proximate causation will be proven.
Dr. Rushing’s expert report explained that the Christus Hospital—St. Elizabeth’s nursing staff failed to properly assess the patient’s medical history and physical conditions. He elaborated that the lack of information resulted in a delay in proper medical care and handicapped the managing doctor from being able to order appropriate testing and plan proper treatment and preventative care.
In other words, the nurses failed to consistently document and advocate for care related to the patient’s brittle bone disease. Dr. Rushing believed that had they done so, the doctors would have pursued the proper course of care, which would have included admitting the patient to the hospital on absolute bedrest, ordering a CT or MRI of the back, and then treat the compression injury to the spine through either bracing or spinal fusion.
He explained that the patient needed an intervention to alleviate pressure on the spinal cord caused by the compression fracture, but instead received no such treatment and her condition progressed to paraplegia.
The Texas Supreme Court concluded: “. . . Dr. Rushing’s explanation provides a straightforward link between the nurses’ alleged breach of the standard of care and [the patient’s] spinal injury. That is, the report draws a line directly from the nurses’ failure to properly document [the patient’s brittle bone disease] and back pain, to a delay in diagnosis and proper treatment (imaging of her back and spinal fusion), to the ultimate injury (paraplegia).”
As a Texas medical malpractice attorney, I’m glad to see the Texas Supreme Court stepped up and provide even more guidance and precedent. Hopefully this will put a stop to the healthcare defendant delay tactics of filing frivolous appeals to preliminary expert reports.
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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 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.