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Texas courts can consider absent or missing medical records when determining expert report sufficiency

Medical record problems are increasingly common

Attorneys for victims of medical malpractice regularly have to confront the challenge of proving negligence when medical records are absent or incomplete. Under Texas law, this is particularly difficult because of the tort reform mandate that plaintiffs produce a medical expert report early in litigation, before depositions or other discovery can occur.

The public policy by requiring medical reports at the beginning of a lawsuit is two-fold. First, it weeds out frivolous claims. Second, it provides fair notice to the defendant of the allegations made against them. The latter requirement entails one or more expert reports that detail the applicable standard of care, how it was breached and by whom, proximate causation, and damages.

Defendants are given 21 days to object to the sufficiency of an expert report. If there is an ultimate decision that an expert report isn’t a good faith effort to comply with the statute, or isn’t legally sufficient, then the court must dismiss the case and order the plaintiff to pay the defendants attorney’s fees.

This brings us back to the challenge of complying with the Texas tort reform expert report statute in the context of medical records that are absent or incomplete. In recent years, we’ve been increasingly confronting this situation.

For example, we’re currently representing the wrongful death beneficiaries of a man who died from a reaction to CT contrast media for an abdominal CT scan at a freestanding imaging center in the Dallas area. The medical records make no mention of the complication, the fact that an ambulance was called, or that emergency medical technicians (EMTs) transported the patient from the imaging center to a hospital, where he was properly pronounced dead.

We were able to rely on the limited medical records from the freestanding imaging center, along with the more complete records from the EMTs and hospital, to produce expert reports from a radiologist, anesthesiology/critical care physician, and CT technologist. Nevertheless, the imaging center objected to the sufficiency of the expert report, arguing, among other things, that the experts didn’t have a sufficient factual basis to support their opinions. (By the way, the trial court and Dallas Court of Appeals rejected the defendant’s arguments and you can read the appellate court’s opinion here).

Frankly, I thought that the imaging center’s argument was gutsy and particularly risky given the fact that its medical records were completely silent about the entire incident leading to the patient’s death.

Interestingly, though, a 2008 opinion from the Texas Supreme Court, styled In re Jorden, provides some guidance of what courts can do in these situations. You can read the opinion here.

Contextually, this case went up on appeal not long after the 2003 round of tort reform was enacted. The question in this petition for mandamus case was whether parties could take depositions before the plaintiff produced an adequate expert report. Of course, now, the answer is a well-settled “no.”

The plaintiff proffered an argument that the tort reform statute may encourage healthcare providers to avoid accountability by intentionally making inadequate records so claimants would be unable to prepare expert reports from them.

The court observed that, “the state of the records can be taken into account in deciding whether a report represents a good faith effort to comply with statute.” In other words, the Texas Supreme Court endorsed the idea that trial and intermediate appellate court may extend more leeway to plaintiffs grappling with absent or missing medical records at the preliminary expert report stage.

The complexity of healthcare liability claims in the Texas tort reform statute should make it clear that it’s in an injured patient’s best interest to consult an experienced Texas medical malpractice lawyer to review any potential claim against a hospital, physician, or other healthcare provider.

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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