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Dallas appellate win: Medical malpractice plaintiffs can amend expert reports to meet tort reform requirements

Freestanding imaging center Gateway Diagnostic Imaging Mid-Cities lost interlocutory appeal over 120-day expert reports

Texas has a unique preliminary expert report procedure that applies to medical malpractice lawsuits.

Codified at Texas Civil Practice & Remedies Code Section 74.351, the tort reform law requires medical malpractice plaintiffs to produce one or more adequate medical expert reports within 120 days of each defendant filing an original answer in the lawsuit. If the plaintiff misses the deadline, a defendant may file a motion to dismiss, which the court must grant, along with an order for the plaintiff to pay the defendant’s attorney’s fees.

Even when a medical malpractice plaintiff timely serves one or more medical expert reports, the tort reform statute allows a defendant to file a motion challenging the adequacy of the reports. An adequate report must define the standard of care, how it was violated and by whom, and link the substandard care to injury or harm to the patient (proximate causation).

Challenges to the adequacy of an expert report come in the form of objections and a motion to dismiss. If the trial court doesn’t grant the requested relief, the tort reform statute allows a defendant to bring an interlocutory appeal.

An interlocutory appeal in a medical malpractice case puts the trial court case on hold while an appellate court determines whether the trial court made the right decision. Nothing can continue the trial court level because Chapter 74 also contains a provision prohibiting even the most basic discovery from going forward until there has been a final determination that the plaintiff served an adequate medical expert report.

This is the situation that we have been dealing with in a pending Dallas case, which we filed on January 13, 2020. The facts of the case are tragic. A healthy man in his 50s walked into a freestanding imaging center called Gateway Diagnostic Imaging Mid-Cities for a routine CT scan with contrast. The patient’s primary care physician had ordered the CT scan to rule out kidney stones.

A Gateway CT technologist administered CT contrast and performed the scan. Looking at the medical records, it looks like nothing happened. The radiologist interpreted the CT scan. There is no mention whatsoever of the fact that Gateway personnel called 911 after the patient, foaming at the mouth, had difficulty breathing.

In reality, though, the patient was pronounced dead at a nearby hospital just over an hour after the CT scan began.

The unique circumstances of this case—Gateway medical records were entirely silent about the patient’s crash, code, and the subsequent emergency response—and the discovery stay imposed by the tort reform statute presented some expert report challenges.

To comply with the statutory expert report requirements, we produced expert reports from a radiologist, anesthesiologist/critical care physician, and CT technologist. During the 120-day period that medical negligence plaintiffs are given to produce medical expert reports, we produced reports and Gateway timely objected to their adequacy. We then worked with our experts to amend the reports and address Gateway’s objections—all within the 120-day period.

On August 25, 2020, the trial court overruled all of Gateway’s objections and denied its motion to dismiss. Gateway then opted to pursue an interlocutory appeal with the 5th Court of Appeals, in Dallas.

Over a year after the trial court’s order, on August 30, 2021, the Dallas Court of Appeals entered its opinion, affirming (agreeing with) the trial court’s decision. The well-written opinion by Justice Leslie Osborne contains some important analysis that will be useful in future cases. You can read the court’s opinion here.

Plaintiffs may amend expert reports within the 120-day period

The most significant (and, to me, bizarre) argument that Gateway asserted is that plaintiffs may not amend expert reports during the 120-day expert report period allowed by Chapter 74.351.

Generally speaking, in any pleading or discovery instrument, party may add to it in one of two ways: supplement or amendment. These two vehicles differ significantly. A supplement adds to what is already there but doesn’t replace it. An amendment, on the other hand, replaces and nullifies what was previously filed or served.

To understand the Gateway argument that the Dallas Court of Appeals rejected, there are two important deadlines to keep in mind:

• 120 days: The plaintiff has 120 days to serve one or more adequate expert reports. The 120 days starts upon each defendant’s filing of an original answer in a medical malpractice lawsuit.

• 30 days: Section 74.351(c) allows a trial court to grant one 30-day extension for the plaintiff to cure any deficiencies that the trial court finds in an expert report.

Gateway argued that Section 74.351(c) prohibits an amendment of an expert report within Section 74.351(a)’s 120-day period unless the trial court has first ruled that the reports are deficient.

In disagreeing with Gateway’s argument, the appellate court noted that Gateway supplied no precedent or authority for its novel proposition that Section 74.351(c) prohibits amendment of expert report in the 120-day period before the trial court has ruled on a defendant’s objections or motion to dismiss. This is a common sense and basic point but is also key because it is the first time a Texas appellate court has entered an opinion addressing this question.

The Dallas Court Appeals found it significant that at the time that the plaintiff served permitted reports, the trial court had not made any ruling of a deficiency, so no cure was required. In other words, the 30-day period of Section 74.351(c) was never triggered. Instead, serving her expert reports early, the plaintiff was able to correct any deficiencies in the expert report and re-serve them before the 120-day deadline.

Experience matters

This appellate opinion illustrates the importance of hiring an experienced Texas medical malpractice attorney who understands the intricacies of Texas law for this type of case. If you’ve been seriously injured because of poor medical, hospital or health care in Texas, then contact a top-rated, experienced Texas medical malpractice lawyer for a free consultation about 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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