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The role of inferences in Texas medical malpractice expert reports

Some inferences are allowed, others aren't

Texas law is legendary for being pro-hospital and pro-doctor. The 2003 round of tort reform places every medical malpractice case filed in a Texas state court at risk of dismissal if a plaintiff doesn’t serve a sufficient medical expert report on a defendant within 120 days of that defendant filing an answer in the lawsuit.

Appellate courts contend that a sufficient expert report only has to be detailed enough to provide the defendant with fair notice of the allegations in the lawsuit and to demonstrate to the court that the case has merit. In reality, though, assembling medical expert reports is a grueling exercise for plaintiffs and their attorneys and experts that requires careful attention to detail. At a minimum, a sufficient medical expert report will separately define the standard of care, how the defendant healthcare provider breached the standard of care, proximate causation, and damages.

In some cases, the available facts and degree of detail in the medical records makes the process of producing an expert report more challenging to the plaintiff. For example, we are working on a case where the medical records are entirely silent about a patient’s cardiac arrest at a healthcare facility, an ambulance being summoned to taken to hospital, and his death about an hour later.

In many cases, and in particular those who were there is a dearth of documentation, the parties and courts have to deal with inferences.

The dictionary defines an inference as a conclusion reached on the basis of evidence and reasoning.

There are countless Texas appellate opinions that recite well-settled case law that courts are not allowed to make inferences from what’s stated in a medical expert report, but rather are limited to the four corners of the report itself. This body of law is why most defense lawyers consider infererences to be a bad word.

A recent opinion out of Houston’s 14th Court of Appeals deals with inferences from another angle—whether an expert can make reasonable inferences from the medical records. The case is styled Anil Sinha, MD v. Roger Niebuhr, No. 14-10-00751-CV (14th Court of Appeals, 2/18/2021). you can read the opinion here.

In this interesting case, the court reviewed a surgical expert’s report on behalf of the patient who alleged botched post-appendectomy care by a defendant surgeon. The surgery expert contended that the patient’s post-operative complications warranted fast workup and a return to the operating room for an exploratory laparotomy to find out what was wrong. If the defendant surgeon had complied with the standard of care in this regard, the expert believed that the surgeon would have identified and repaired a leak. The expert identified the site of the leak as being the stapled-up appendectomy site.

The defendant surgeon objected to the sufficiency of the expert report, arguing that the surgery expert didn’t adequately explain why the stapled-up appendectomy site and the leakage site were related. In approving the plaintiff’s expert report, the appellate court noted that the expert referenced a pathologist’s interpretation of a CT scan that identified a full-thickness defect immediately adjacent to the probable appendectomy site.

The court noted that while it was not 100% conclusive that the appendectomy called the defect, these facts did demonstrate that the defect had existed at all relevant times and was capable of being observed and located by the defendant surgeon.

It’s at this point in the court’s reasoning that the topic of inferences arose. The court cited one of its 2008 opinions in the case styled Marvin v. Fithian, No. 14-07-00996-V (14th Court of Appeals, 7/1/2008). You can read that opinion here.

In both the Sinha opinion and the Marvin opinion, the court of appeals rejected defense arguments that a plaintiff’s medical expert report engaged in impermissible inferences from the medical record. Instead, the court concluded that, under the facts of these cases, the expert reached conclusions that amounted to a “permissible inference gleaned from the medical records.”

The big take-home message from these opinions is that all inferences aren’t bad under Texas medical malpractice lawyer. So long as a plaintiff’s medical expert provides a sufficient factual background in basis for an opinion, the expert may make permissible inferences to reach a conclusion. If you’ve been seriously injured because of poor health care in Texas, the reach out to a top-rated Houston, Texas medical malpractice lawyer with significant experience in this complex area of law.

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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