Defense attorneys for hospitals and physicians have some procedural tools available to them that can be used to ask a trial court to dismiss a plaintiff’s medical malpractice lawsuit.
Expert report dismissal
The most commonly used dispositive tool is likely the motion to dismiss early in the litigation process for an alleged failure of a plaintiff to comply with the preliminary expert report requirements. This tort reform statute is codified at Texas Civil Practice & Remedies Code Section 74.351.
The law requires medical malpractice plaintiffs to serve on each defendant at least one medical expert report and accompanying curriculum vitae (resume) within 120 days of each defendant filing an answer in the lawsuit. The reports are tenuous and burdensome, requiring separate detailed statements of the standard of care (what the healthcare provider should have done), deviation from the standard of care (the mistake), proximate causation (how the error was a foreseeable cause in fact of the injury), and damages (how it harmed the patient).
After a plaintiff serves a medical report, the defendant has 21 days to file objections to the sufficiency of the report. If the trial court finds that no report was filed, or ultimately determines that a report is insufficient under the statute, then the court must dismiss the case and order the plaintiff to pay the other side’s attorney’s fees.
Motion for summary judgment
A less common dismissal tool that defendants use in medical malpractice cases is the motion for summary judgment.
Juries decide fact issues—they sort out “he said, she said” disputes. Judges apply the law. In a motion for summary judgment, the defendant alleges that there’s no genuine issue of material fact for the jury to decide. If the court agrees, then it’s up to the judge to decide the case—a summary judgment—as a matter of law.
Motions for summary judgment are normally tough for defendants (or any party for that matter) to win because it’s typically easy to generate a fact issue. All that’s requires it to provide more than a scintilla of evidence on any challenged element to defeat summary judgment. Speaking of elements, because plaintiffs always bear the burden of proof, it’s essential for plaintiffs’ lawyers to know and understand every element that requires proof for every cause of action that’s alleged. In any medical negligence claim, for example, a plaintiff must prove duty, breach, proximate cause, and harm.
In most medical malpractice cases, there are fact issues galore. For example, plaintiffs present medical experts who testify about one opinion or theory of what they believe happened, based on reasonable medical probability. The defendants do the same thing. Both sides can’t be right, so this presents a textbook example of a fact issue for the jury to decide.
In cases involving summary judgment, there’s a laser-like focus on the sufficiency of the plaintiff’s evidence on each essential element. Again, because the plaintiff bears the burden of proof, missing the mark on just one element can mean defeat—and an adverse summary judgment.
That’s what happened when the Fort Worth Court of Appeals recently entered an opinion upon review of a trial court’s granting a motion for summary judgment in favor of a defendant physician. The case is styled Eaglin v. Jonathan Purcell, MD, No. 02-20-00199-CV, In the Fort Worth Court of Appeals. You can read the opinion here.
The background facts involve a seven-year-old girl with a history of juvenile asthma. One day when she had problems breathing, her mother took her to a hospital emergency room (ER). Dr. Purcell, the ER physician, determined that the patient was in respiratory distress, with elevated respiratory and heart rates.
The ER doctor felt that she was having a mild asthma attack and ordered breathing treatments and a dose of steroids. About an hour after the medications were given, the ER physician evaluated the patient, found that she was breathing comfortably, and discharged her to home. Discharge instructions included taking steroids for five days, continuing breathing treatments every eight hours, and using a rescue inhaler every six hours as need.
About six hours later, the mom and child went to the pharmacy to pick up the prescriptions. While en route to the drug store, the daughter complained of chest pain, vomited, and became unresponsive. They rushed to the hospital, where she was diagnosed with status asthmaticus, which is a severe asthma attack. She suffered from a heart attack and respiratory therapy, leading to her death three days later from an anoxic brain injury (hypoxic ischemic encephalopathy).
In the medical malpractice lawsuit that followed, the defendant ER physician filed a motion for summary judgment. The plaintiff timely filed a response than included an expert report, rather than an affidavit. That caught my attention as the first sign of trouble for the plaintiff.
The rules governing summary judgment evidence are technical and demanding and require careful attention. An expert report isn’t sworn or under oath, but an expert affidavit is. Thus, an expert report isn’t competent summary judgment evidence, but an expert affidavit makes the cut.
The Fort Worth appellate court was forgiving of that procedural mistake, probably because it could have been easily cured or fixed with some additional time. Be forewarned, though, many courts aren’t so forgiving. In the end, though, it didn’t affect the outcome of the decision.
The court of appeals decided that the trial court appropriately granted summary judgment for the defendant physician. The answer to the question “why” lies in the evidence that the plaintiff provided on the elusive issue of proximate causation.
The court felt that the opinion of the plaintiff’s expert wasn’t enough to raise a genuine issue of material fact, focusing on inadequate opinions on proximate causation. The crux of the expert’s argument was that the emergency physician failed to give appropriate discharge instructions, resulting in the patient not taking any medication for an extended period of time. The court basically decided that even if the doctor made the mistakes that the plaintiff contended he had, there wasn’t evidence that linked the mistakes to the pediatric patient’s sad and untimely demise.
Quoting the expert, “Dr. Purcell’s instructions basically resulted in a situation where a patient with acute asthma exacerbation, who required continuous treatment, was instructed not to treat it at all . . . .” The expert felt that a continued hospital admission and medical treatment would have led the patient to survive the incident of “mild asthma exacerbation.”
I think the expert’s use of those words may have captured the appellate court’s focus. The court ultimately decided that the expert didn’t connect the dots between the first asthma incident and the later one that led to her acute deterioration, cardiac and respiratory arrest, and ultimate death.
In my experience, expert reports, affidavits, and deposition or trial testimony for plaintiffs must be detailed and precise to survive preliminary or summary judgment attacks. Painting a big picture isn’t enough. There must be sufficient evidence on every required element of medical malpractice.
If you’ve been seriously injured by poor medical or hospital care in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer for a complementary consultation about your potential case.