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Healthcare facility with missing medical records argues otherwise, though Contact Now

Texas medical malpractice plaintiffs are free to amend preliminary expert reports

Healthcare facility with missing medical records argues otherwise, though

Texas law requires medical malpractice plaintiffs to produce one or more medical expert reports early in litigation. The stated purpose of this tort reform statute is to require plaintiffs to provide defendants with fair notice of the claims against them (including detailed separate statements of the standard of care, how it was violated, proximate causation, and damages) and to satisfy the court that the claim has merit.

Early after this statute became law in 2003, many defense lawyers filed objections to virtually every expert report, hoping that trial courts would dismiss their cases. Over the years, though, trial and appellate courts put an end to the frivolous objections practice of the hospital and health care defense bar.

That’s why I was surprised to encounter a novel objection to a set of expert reports that we served on a facility defendant in a medical malpractice wrongful death case. In this particular case, the medical records from the facility were completely silent concerning any complication or circumstances related to the patient’s death.

Based on what’s documented in the chart, a reader would be left with the mistaken belief that everything regarding the procedure went fine and the patient went on to lead a normal life. In reality, though, there was a major complication that compromise the patient’s respiratory and cardiac status, facility staff frantically ran to look for physician help, the facility was unprepared to respond to the emergency, 911 was summoned and an ambulance crew worked on the patient before transporting him to hospital, where he died.

As is our custom and preference, we served proper expert reports shortly after filing the medical malpractice wrongful death lawsuit, rather than waiting near the end of the allocated 120 days for this task. This allowed us ample time to consider any defense objections and address them with our experts through amended reports. This was a particularly important consideration given the fact that so much information was missing from the facilities medical record documentation.

Despite producing expert reports from two board-certified physicians and another non-physician healthcare provider, the defendant facility still persisted in its objections. Apparently oblivious to the odd predicament that its inaccurate, lacking medical records created for experts trying to form preliminary opinions about what occurred, the facility objected to the fact that we produced updated, amended reports from our experts, to address the facility’s objections.

Fortunately, Texas law makes it clear that the facility’s argument is a losing one. The San Antonio Court of Appeals considered this precise question in a case styled Christus Santa Rosa Health Care Corp. v. Vasquez, 427 S.W.3d 451, 454 (Tex. App.—San Antonio 2014, no pet.). There, the court found that, “If a plaintiff [] serve[s] its expert reports [] before the 120-day deadline . . . , [the defendant] was [] required to file objections to the report within twenty-one days after [service], even though a motion to dismiss could not yet be filed. By filing their expert report early, [the defendant’s] objections provided an opportunity for the [plaintiffs] to correct any deficiencies in the report and re-serve [it] before the 120-day deadline.”

This type of objection illustrates the procedural minefield that medical malpractice plaintiffs and their attorneys must be ready to navigate. When a person is injured in the State of Texas because of poor medical or health care, it’s important to get advice from a top-rated spirit Houston, Texas medical malpractice lawyer.

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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