Houston court of appeals allows extension of medical malpractice expert deadline because of COVID pandemic

The First Court of Appeals in Houston recently entered an opinion in an interesting case involving statutory deadlines during the COVID pandemic. 

The case is styled Karan Surinder Bhalla, MD, PLLC v. Sylvia Soria, No. 01-20-00672-CV, and is on appeal from the 129th District Court of Harris County Texas, where The Hon. Michael Gomez is the presiding judge. You can read the appellate court’s opinion here.

Tripping on a treadmill at a doctor’s office

The background facts of the case are pretty simple. A patient needed cancer surgery and was referred to a cardiologist for clearance.

Medical clearance for surgery is an interesting topic in and of itself. Surgeons essentially want a cardiologist’s opinion on the likelihood that the patient could tolerate or survive surgery. A wise cardiologist would simply interpret the testing and leave it up to the surgeon to weigh the risks versus benefits of surgery. Most surgeons, on the other hand, prefer a cardiac clearance, which seemingly shifts liability on any untoward intraoperative cardiac event on the cardiologist.

The patient went to Dr. Karan Bhalla’s office, known as Orion Medical, for a cardiac stress test. A nurse or medical technician instructed the patient to step onto a treadmill, and then started the treadmill and a high-speed without warning. The patient couldn’t keep up with the fast speed of the treadmill and fell down, breaking her left arm.

The expert minefield in the age of COVID-19

The Texas Medical Liability Act, often referred to as Chapter 74, based on its codification at Texas Civil Practice & Remedies Code Ch. 74, requires medical malpractice plaintiffs to produce one or more medical expert report with 120 days of each defendant filing an answer to a lawsuit. The reports must describe the standard of care, how was violated, and how such conduct proximately caused harm to the patient.

If a plaintiff serves no report in the 120-day time period, the case must be dismissed. If the trial court determines that the expert reports are inadequate to meet the statutory standard, the judge may give the plaintiff one 30-day period to cure any defects.

While it’s possible to use expert reports from nurses or other non-physician healthcare providers to satisfy some of the statutory requirements of this tort reform law, only a licensed physician can provide the proximate cause opinions. Thus, every plaintiff’s health care liability or medical malpractice claim must have at least one physician expert on board.

As you may have guessed by this point, that’s not what initially happened in this case. According to the plaintiff’s lawyer, there was a significant delay in obtaining the medical records from Dr. Bhalla. Although the plaintiff had requested the records in August 2019, the doctor’s office didn’t provide them until just less than two months before the 120-day deadline, which was April 3, 2020.

That date is significant to the procedural background because you will recall that this was at the beginning of the COVID-19 pandemic. Over the course of 2020, of course, the Texas governor and Supreme Court issued various proclamations and orders related to the emergency room. The Supreme Court’s emergency orders gave trial judges uncharacteristic leeway to extend deadlines during the pandemic, even for tort reform deadlines as rigid as those of Chapter 74.

For reasons that are unclear to me, the plaintiff initially only produced a timely expert report from a registered nurse. The defendant timely filed several objections, including the most predictable one—that the nursing report was legally no report at all because a nurse is not a physician, which is required for providing a causation opinion.

If the trial judge agreed, of course, no report means no 30-day extension.

Meanwhile, over two months after the 120-day deadline, the plaintiff filed a new expert report from a licensed physician. Normally, meaning non-pandemic times, this would be a no-go 100% of the time. But we aren’t in normal times.

In my experience, Judge Gomez is always thorough and methodical as a trial judge, and this case was no different. He required the plaintiff to put on evidence of why the COVID pandemic caused delays. The trial judge considered the evidence and then entered an order extending the plaintiff’s Ch. 74 deadline, pursuant to the Texas Supreme Court’s 22nd Emergency Order and the 30-day cure period allowed by Section 74.351.

Next, the defendant filed for an interlocutory appeal. This is a procedure that’s fairly unique to health care liability claims, in that it allows a defendant to appeal the denial of a motion to dismiss before the end of the trial—that’s called an interlocutory appeal.

In this case, though, the First Court of Appeals denied the defense appeal on jurisdictional grounds. The appellate court held that it did not have jurisdiction to hear an interlocutory appeal over the trial court’s denial of a motion to dismiss because the trial court had granted a 30-day extension under Section 74.351. To give the appellate court jurisdiction, the defendant would have had to have filed insecure ruling on the second motion to dismiss, which was not done in this case.

If nothing else, perhaps one thing that this case gets across is how complex Texas medical malpractice law is. That’s why if you’ve been seriously injured because of poor health care in Texas then you should contact a top-rated and experienced Texas medical malpractice lawyer for free consultation about your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys 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 for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.