The Corpus Christi Court of Appeals recently entered the latest opinion in a medical malpractice case that has been yo-yoing among the trial, appellate, and Texas Supreme courts. The case is styled Zamarripa v. Columbia Valley Health Care System; Case No. 13-18-00231-CV, In the 13th Court of Appeals of Texas.
Like the prior opinions of the courts, the February 28, 2019 memorandum opinion from the 13th Court of Appeals addresses the preliminary expert report requirements unique to Texas medical malpractice cases.
A quick primer: Within 120 days of each defendant filing an answer in a Texas medical malpractice case, the plaintiff must serve one or more medical expert reports. The reports must define the applicable standards of care, how each healthcare provider violated them, and how the sub-standard care caused harm to the plaintiff.
Once the expert reports are timely served, defendants have 21 days to object to their adequacy. In the Zamarripa line of cases, the hang-up has been whether the expert reports adequately explained how the allegedly poor nursing care caused injury to the patient.
Texas allows certain appeals even before trial
Before getting into the substance of this interesting opinion, I’d like to address what some might be wondering—how is it that a single case could have so many appellate opinions?
When it comes to the preliminary expert reports required by Texas Civil Practice & Remedies Code 74.351, defendants can file an interlocutory appeal of the trial court’s finding that an expert report is adequate, even while the trial court case is still pending. In other words, defendants don’t have to wait until after trial to go to the appellate court.
Causation regarding nursing conduct
These opinions are significant because they provide an outline of what’s required for plaintiffs in Chapter 74 reports dealing with substandard nursing care. Specifically, they provide insight on what the physician expert report must say to establish causation—meaning linking the poor nursing care to patient harm.
After the Texas Supreme Court found in favor of the defendant hospital on the causation objection, the case went back to the trial court level to allow the plaintiff another bite at the apple by submitting supplemental reports to address the court’s concerns. This, too, is allowed by the statute, but plaintiffs are only allowed one 30-day period to come up with additional reports.
With all of the procedural back and forth that’s the focus of these opinions, it’s easy to lose sight of what happened to the patient. It’s really tragic: A 36-year-old pregnant woman and her unborn child died while being transferred from one hospital to a different one far away. According to the plaintiffs and their experts, the mom needed her baby delivered immediately and shouldn’t have been transferred.
The plaintiffs’ nursing expert reports provide some detail about what happened.
The supplemental nursing expert report explained that low fibrinogen levels in patients with placenta accreta can lead to disseminated intravascular coagulation (DIC). The nursing expert wrote that the nurses breached the standard of care by not advocating for further investigation of the patient’s continued abdominal pain/pressure and by allowing her to be transferred to another facility many miles away while she was clearly in pre-term labor.
Under the law, nurses cannot provide opinions regarding causation, so the plaintiff produced a supplemental report by a physician. This expert concluded that the nurses deprived the treating physician of necessary information that he should’ve considered. With the information, the expert wrote, the physician would’ve known that the patient was not stable for transfer and that she needed to be delivered immediately or, alternatively, if she had to be transferred, then it needed to be to a much closer facility.
Predictably, as these things go, the hospital objected again, contending that even the supplemental reports were inadequate. The Corpus Christi Court of Appeals soundly rejected the defense argument.
It seemed particularly irksome to the hospital that the experts’ supplemental reports said that the physician was unaware of the additional clinical information at the time of his decision-making, and that it would’ve made any difference.
The appellate court decided that the supplemental reports were sufficient as to proximate causation under Chapter 74. The expert reports explained how the nursing errors deprived the physician of information that would’ve made it apparent to the physician that the patient was not stable enough for transfer. Rejecting the defense argument that this conclusion was pure speculation, the court of appeals concluded that it was a “considered expert opinion, the credibility of which is not an issue at this stage of the litigation.”
I bolded that language because I think it really nails a major issue. Defendants frequently ask courts to hold plaintiffs to improper standards for preliminary expert reports. The law only allows limited information and discovery at the preliminary expert report stage, and is clear that these reports don’t have to meet a summary judgment or trial standard.
In short, I think the Corpus Christi Court of Appeals made the right decision here. I have little doubt that the hospital will file another petition for review with the Texas Supreme Court. It would be unusual for the higher court to grant such a petition again, but who knows for sure?
What this all means
The 13th Court of Appeals opinion provided some useful guidance for language that future nursing expert opinions could use. For instance, the court noted with approval that the expert stated directly that the nurses’ breaches of the standard of care deprived the physician of information that was necessary to his decision on whether or not to order a non-emergency transfer.
In my experience as a medical malpractice attorney, the preliminary Chapter 74 expert report requirements are essentially a moving target. Although they were initially intended to give fair notice of the plaintiff’s criticisms and to show the court that the case had merit, appellate courts have morphed the requirements into clunky, long documents.
I’ve frequently written and spoken about how the Texas expert report requirements are a minefield for attorneys who don’t regularly practice in this complex area of the law. Experienced medical malpractice lawyers, on the other hand, are familiar with the requirements and can help experts navigate the demands of Texas law.
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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.