In December 2018, the Dallas Court of Appeals released a new opinion that addressed the standard that preliminary expert report requirements must meet when it comes to nursing errors. The cases styled Greenville SNF, LLC d/b/a Greenville Health and Rehabilitation Center v. Webster; No. 05-18-00038-CV, In the 5th Court of Appeals at Dallas (12/21/18).
Unlike other types of negligence cases, Texas tort reform law requires medical malpractice plaintiffs to produce expert reports early in litigation. Every medical malpractice case will require a physician expert to write an opinion explaining how any errors by healthcare providers caused harm in injuries to the patient/plaintiff.
The facts of the Webster case are pretty shocking. According to the lawsuit petition, the patient was a resident of a skilled nursing facility called Greenville Health and Rehabilitation Center. A Greenville employee found the patient non-responsive and with a low oxygen saturation of 72%.
From my experience in handling many medical malpractice cases, I know that the normal range is 95-100%, and any oxygen saturation level below 80% is considered a medical emergency. It’s particularly concerning that the Greenville nurse waited so long to call 911, knowing that most skilled nursing facilities rarely have a physician on-site.
Despite these findings, for some reason the Greenville employee waited 45 minutes before calling 911.
The plaintiff produced a preliminary expert report from a physician, to satisfy the tort reform requirements of Texas Civil Practice & Remedies Code 74.351. Greenville objected to the sufficiency of the report, but the trial court denied its motion to dismiss the case on these grounds. The skilled nursing facility then took that decision up on interlocutory appeal, reasserting its argument to the Dallas Court of Appeals that the plaintiff’s physician expert report was inadequate.
The big issue on appeal was whether the plaintiff’s expert report adequately addressed causation. Texas law requires a physician to logically link together a medical or, in this case, a nursing error as a cause of the ultimate injury to the patient. Here, the question was whether the 45-minute delay in calling 911 made a difference in the outcome.
The physician expert report explained that there should be no delay in transferring a patient to the hospital when a patient is found unresponsive with a 72% oxygen saturation. The expert went on to conclude that if the patient’s clinical status had been recognized, understood, and properly assessed and acted upon immediately by patient transfer to the hospital, then more likely than not the multiple ischemic infarcts (anoxic injury because of lack of blood flow and oxygenation) to the brain would not have occurred.
The Dallas Court of Appeals concluded that the physician’s expert report was conclusory. In other words, the appellate court was of the opinion that the expert didn’t give an adequate explanation linking his conclusion to the facts of the case. The court specifically discussed these deficiencies:
• The report didn’t explain how an oxygen saturation of 72% could cause brain infarcts.
• The report didn’t explain how brain infarcts can cause death.
• The report didn’t explain how a 45-minute delay in calling 911 for medical response resulted in brain infarcts.
In other words, the court explained, the medical expert didn’t draw a line directly from the 45-minute delay in calling 911 to the cause of the patient’s death about a month later at a different facility.
Although it was unhelpful to the plaintiff and the ultimate outcome of the case, the Dallas appellate court rejected one of the skilled nursing facility’s arguments. The court concluded that a medical expert does not have to rule out other probable causes of the patient’s death or establish that one of the patient’s other multiple existing medical conditions caused the patient’s death.
In finding for the nursing facility and against the plaintiff, the appellate court remanded the case back to the trial court. The purpose of this is for the trial judge to determine whether the expert report could be corrected and, if so, to extend a 30-day period to do so.
The way this inefficient statute works, if the plaintiff corrects the report and the defendant objects again, there could be another appeal to the Dallas Court of Appeals before there’s ever a trial on the merits of the case.
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As a Houston, Texas medical malpractice attorney, I keep informed about appellate cases throughout the State of Texas. This allows me to work with our medical experts to comply with the moving targets imposed by our courts.
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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.