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Texas Appellate court trend favors medical malpractice plaintiffs in expert report challenges Contact Now

New Houston appellate opinion rules against anesthesiologist in expert report dispute

Texas Appellate court trend favors medical malpractice plaintiffs in expert report challenges

The First Court of Appeals in Houston entered a new opinion in a medical malpractice case that will hopefully discourage frivolous motions to dismiss filed by healthcare defendants early in litigation.

The case is styled Ajay Aggarwal, M.D. v. Marcie Trotta, No. 01-19-00012-CV, in the First Court of Appeals of Texas (June 11, 2019). You can read the opinion here.

As a Houston, Texas medical malpractice attorney, I found the background facts interesting because they remind me of a case I tried to a jury verdict several years ago.

The patient, Marcie, went to see Dr. Ajay Aggarwal, an anesthesiologist and pain doctor, because of neck pain and tingling. Dr. Aggarwal recommended a cervical steroid injection. According to the lawsuit petition, the doctor performed the injection while Marcie was in deep sedation.

The plaintiffs allege that Marcie was over-sedated, so she couldn’t speak up or react when Dr. Aggarwal punctured and injured her spinal cord by mistake with the needle. The lawsuit claims that Marcie received significant injuries as a result of Dr. Aggarwal’s negligence.

Any plaintiff in a medical malpractice lawsuit in Texas has to meet the legal requirement of producing a medical expert report within 120 days of the healthcare defendant filing an answer in court. Based on the numerous requirements for these reports created by Texas Civil Practice & Remedies Code Chapter 74.351 (the tort reform law) and some court decisions, this is a substantial hurdle that medical malpractice plaintiffs must jump.

Even after producing an expert report, defendants have 21 days to object to the adequacy of the report. If a plaintiff misses the deadline, or the trial court ultimately decides that the report is not good enough to meet the standard, then the court must enter an award of attorney’s fees. This means that the plaintiff would have to pay for the doctor’s or hospital’s attorney’s fees.

In case you’re wondering, there’s no legal provision requiring or even allowing an award of attorney’s fees when a healthcare defendant makes a frivolous objection and motion to dismiss regarding a plaintiff’s expert report. Some physicians, hospitals, and their attorneys are notorious for filing frivolous objections all the time.

In this case, Dr. Aggarwal filed objections to the plaintiffs’ detailed expert report. The trial court denied those objections. The First Court of Appeals agreed with and upheld the trial court’s decision. I enjoyed the refreshing restatement of prior decisions contained in this opinion.

The court reminded readers of how Chapter 74 requirements have gotten out of hand, noting that, “The good-faith requirements of the statute have been described as a ‘lenient standard,’ ‘low threshold,’ and ‘relatively low bar.” Other significant findings in the court’s opinion include:

• Dr. Aggarwal criticized the expert report by focusing on just one sentence. This is a favorite tactic of many defendants and their lawyers. The First Court of Appeals noted that courts are obligated to review an entire expert report instead.

• The expert adequately defined the standard of care by stating that the appropriate level of sedation for a cervical steroid injection procedure is one that allows the patient to communicate pain and discomfort that may arise during the surgical procedure. The physician must insure the patient is at the appropriate level of sedation during the procedure because communication is critical. If the physician strikes or penetrates the spinal cord or nerve he can withdraw the needle before causing additional damage and avoid injecting steroids into the spinal cord, as the expert believes happened here.

• When the expert stated that Dr. Aggarwal should have observed Marcie’s level of sedation and delayed the procedure until she was communicative, there was nothing left to infer. Instead, the expert report expressly referenced the specific conduct at issue.

• The court rejected as overly narrow Dr. Aggarwal’s argument that the expert confused the physician’s job with that of the certified registered nurse anesthetist (CRNA). The expert report does not contend that the physician had to do the CRNA job, but rather that the physician violated the standard of care by not paying attention to the patient’s level of sedation.

• Dr. Aggarwal’s dispute that the expert accurately stated the standard of care does not support a dismissal at the preliminary Chapter 74 stage.

• The expert report adequately addressed that an injury to the patient was foreseeable to the physician because an over-sedated patient is noncommunicative and can’t speak up or react when the needle touches the spinal cord. The physician doing this type of procedure should know that injecting the needle and/or steroid would cause intense pain to the patient.

• Chapter 74 expert reports do not need to rule out every possible cause of the injury, harm, or damages claimed.

• These preliminary expert reports are not required to prove the plaintiff’s case, but only to provide notice of the conduct forming the basis of the claim.

• Chapter 74 reports do not need to anticipate or refute all possible defensive theories that may ultimately be presented.

This is another good opinion for medical malpractice plaintiffs out of the Houston Court of Appeals. If you or loved one has been seriously injured because of poor medical, surgical, anesthesia, or physician care, then contact a top-rated Texas medical malpractice attorney for in pursuing your potential case.

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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