In the almost two decades since tort reform became the oppressive law of the land in Texas, many hospitals, doctors, and their lawyers have enjoyed jumping at any opportunity to add to the expense and delay of litigation.
One of the favorite areas for defendants and their attorneys is the unique legal requirement for Texas medical malpractice plaintiffs to produce at least one medical expert report very early in the litigation. These reports are called “Chapter 74 reports,” named after the tort reform statute that created the requirement.
The Chapter 74 report requirement adds significant delay to litigation—even basic discovery is barred until it’s satisfied—not to mention expense. The timeline works like this:
• Plaintiff files a lawsuit and serves a defendant, let’s say a hospital.
• When the hospital files an answer, a 120-day Chapter 74 report deadline starts ticking.
• Upon serving the expert report and CV, the hospital gets 21 days to file objections to the adequacy of the report.
• The plaintiff can serve amended or additional expert reports during the 120-day period, and the hospital can file objections to each of them.
• If the Plaintiff doesn’t serve a report, or if the trial court eventually finds that the expert report isn’t good enough, the hospital can file a motion to dismiss. The trial court must grant it, under the circumstances, and order the Plaintiff to pay the hospital’s attorney’s fees.
For many years, appellate courts across Texas tended to side with defendants on these Chapter 74 expert challenges. It seemed like a race to raise the bar higher and higher than even what the legislature intended when enacting tort reform.
Recently, though, there has been a change in appellate courts. The February 13, 2020 opinion by Houston’s 14th Court of Appeals, in In Jorge Robles et al. v. Pinnacle Health Facilities XV, LP d/b/a Woodridge Nursing and Rehabilitation, No. 14-18-00135-CV, In the 14th Court of Appeals of Houston, Texas, adds to this growing body of common-sense law.
The factual background of what happened in the case is sad and easy for even a non-expert to understand. The 84-year-old Ms. Robles was transferred from Houston Methodist West Hospital to Woodridge Nursing and Rehabilitation. She was bedridden because of osteoarthritis and osteoporosis. Because of this fact, she needed nurses and other staff members of the nursing facility to transfer her into and out of bed.
The standard of care for a nursing facility requires a nursing plan of care that identifies the risk for falls and injuries, as well as patient needs for mobility and transfers. The nursing care plan required: (1) at least two or more staff members to assist physically with transfers; (2) use of a Hoyer lift; (3) use of a geri-chair; and (4) use of a sling.
Of course, even the best possible nursing care plan is no good if staff members don’t follow it.
The nursing home records are rather sparse on details, but records from Methodist Willowbrook Hospital note that she fell approximately three feet from a Hoyer lift, and the Hoyer lift itself fell on her after the fall. She was transferred to the hospital, where she died less than two hours after arrival.
Like many cases, in Robles, there was a costly, time-consuming merry-go-round of Plaintiff’s expert reports, objections filed by the nursing home, and new expert reports. The court’s opinion references an original report, an amended report, and another amended report by a geriatric physician, all of which were objectionable to the nursing home. Add to that two separate appeals.
In the second appeal, which is the subject of the February 13, 2020 opinion, Woodridge Nursing and Rehabilitation objected that the geriatric doctor’s most recent amended report wasn’t supported by an adequate factual basis. Specifically, the physician expert wrote that, “The staff that was assisting in the transfer breached the standard of care by either failing to have two staff members present at the time of the transfer or by failing to adequately respond” once the fall began.
As I mentioned earlier, the nursing home records had very little to say when it came to details about how the fall occurred. The lawyer for the plaintiffs provided the expert with an affidavit from a family member which stated that he was told immediately after the fall that only one staff member was present. The expert relied on the information provided in the affidavit and provided detailed reasons why it is unlikely that the fall would have occurred if two staff members had been present.
The 14th Court of Appeals flatly rejected Woodridge Nursing and Rehabilitation’s objection that the expert’s report was deficient because it relied on an affidavit “from one of the plaintiffs in the case.” The court noted that:
• A medical expert preparing a Chapter 74 report can rely on unrebutted allegations contained in the plaintiff’s original petition. For this proposition, the court cited a 2012 Texas Supreme Court case, Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012), which stated that, “we do not see why an expert, when formulating an opinion, should be precluded from considering and assuming the validity of matters set out in pleadings in the suit, absent a showing that the pleadings are groundless or in bad faith or rebutted by evidence in the record.”
• A medical expert can also rely on a plaintiff’s affidavit testimony.
The appellate court addressed all the other arguments of the nursing facility and, in a refreshing breath of fresh air, said that the expert report “clears Chapter 74’s low threshold that a person bringing a healthcare liability claim against a health care provider must cross to show that his or her claim has merit.”
If you’ve been seriously injured because of errors by a hospital, nursing home, or doctor, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for help in evaluating your potential case. In my opinion, it’s important to select a lawyer who practices regularly in this complex area of law.