You have a Medical Malpractice attorney at Painter Law Firm

Call Us Today: Free Case Review / No Fees Until We Win 281-580-8800

Lubbock heart hospital loses appeal in medical malpractice expert report challenge

Hospital failed to file an objection to plaintiff's amended expert report

The Lubbock Court of Appeals entered an interesting opinion on a procedural issue in a cardiology medical malpractice case. The case is styled McQuillen v. Lubbock Heart Hospital, LLC d/b/a Lubbock Heart and present Surgical Hospital; No. 07-21-00125-CV. You can read the opinion here.

In this case, the plaintiff (the patient) alleged that a cardiologist and heart hospital were negligent because they implanted a pacemaker in her chest when she did not need one. A pacemaker is a medical device that regulates the heart’s rhythm. 

Even in cases where the allegations of negligence are clear, Texas tort reform laws require plaintiffs to produce medical expert reports early in medical malpractice litigation. Specifically, the deadline is 120 days after each defendant files an answer lawsuit.

Once a plaintiff timely serves expert reports, health care defendants are allowed to 21 days to object to the sufficiency of the expert reports. These preliminary expert reports have to be rather detailed, including describing the applicable standard of care, how the standard of care was violated and by whom, and how the substandard care proximately caused harm to the patient.

If the trial court ultimately determines that the report is deficient, then it must dismiss the lawsuit and order the plaintiff to pay the attorney’s fees of the defendant. I find this the ultimate adding insult to injury.

This all seems rather straightforward, but as the Lubbock opinion illustrates, there are some important nuances.

By serving expert reports early in the 120-day time period, plaintiffs have time to supplement or amend expert reports to address any defense objections. This is a technique that we often use in our cases.

Let’s say, for example that the plaintiff serves expert reports on Day 1 after the defendant files an original answer. On Day 20, the defendant files objections to the sufficiency of the expert report. On Day 30, the plaintiff serves amended expert reports. And so on–you get the idea.

The key issue, though, is that there’s a significant procedural difference between a supplemental report and an amended report. A supplemental expert report adds to, but does not replace, an earlier report. An amended expert report, on the other hand, completely replaces an earlier report.

This was the dispositive issue in the Lubbock case. 

The hospital filed objections to the plaintiff’s original expert report and set them for hearing. Before the court entered an order sustaining the objections, the plaintiff served an amended expert report. The hospital didn’t file objections to the amended expert report and contended it didn’t need to do so because the trial court had dismissed the case based on the original expert report.

The hospital’s procedural mistake is readily apparent, as Lubbock Court of Appeals pointed out in its opinion. Because the plaintiff had amended, rather than supplemented, the expert report before the trial court made its ruling, the original expert report had been superseded and was ineffective—for legal purposes it didn’t even exist.

That’s why the court of appeals ruled that the trial court abused its discretion, and remanded the case back for further proceedings.

This case illustrates the complexity and perils of Texas medical malpractice law. Injured patients are well served by contacting a top-rated experienced Texas medical malpractice lawyer for a free consultation about potential hospital, physician, or medical claims.

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.


// Read full biography
// Read more expertise by Robert Painter

Discover More