Houston court of appeals rules in medical malpractice plaintiff's favor

Houston’s First Court of Appeals released a memorandum opinion today in favor of a medical malpractice plaintiff in an expert report dispute. The case is styled Kenneth J. Lee, M.D., K.L. Modern Spine, PLLC, and Karlyn J. Powell, M.D. v. Tony Le, Case No. 01-18-00309-CV, on appeal from the 11th District Court, in Harris County Texas.

Texas law on expert reports

It's important for patients and family members to understand the special requirements that Texas law places on medical malpractice plaintiffs. Perhaps the most unusual one is the expert report requirement imposed by Texas Civil Practice & Remedies Code Section 74.351.

Unlike any other type of civil case in the State of Texas, in a medical malpractice lawsuit, a plaintiff must serve an expert report on each defendant, within 120 days of the defendant filing an answer in the lawsuit. The expert report must be written by a licensed physician and must separately state, in painstaking detail, the applicable standard of care, how each healthcare provider did not meet the standard, and how such violations foreseeably caused injury to the plaintiff.

During that 120-day period, a discovery stay is in place. This means that the plaintiff cannot subpoena any documents other than the medical records or take any depositions. In some situations, it makes it very difficult for a medical expert to form an opinion on what happened.

If the plaintiff doesn't meet the strict expert report standards, then the defendant can object to the sufficiency or absence of the report and file a motion to dismiss. If granted, the trial judge is required to award attorney’s fees against the plaintiff—in other words, the patient could end up paying for the attorney’s fees of the doctor he or she just sued.

Navigating the complex expert report requirements is one reason why I urge people seriously injured by medical negligence to hire an experienced Texas medical malpractice attorney.

First Court of Appeals case

This new memorandum opinion continues a trend in Texas appellate courts in favor of plainitffs who make good-faith effort to follow the expert report requirements of Texas law.

This case involved a patient who had a spine surgery performed by Dr. Kenneth Lee. Dr. Karlyn J. Powell was the anesthesiologist for the procedure. When the patient woke up from surgery, he reported pain in his right arm and hand. They kept him in the hospital for two days as doctors tried to find and treat the cause of his pain. Eventually, the physician concluded that the main symptoms were caused by inflammation or compression of the ulnar nerve.

I have handled a number of cases involving ulnar nerve injuries. The ulnar nerve runs along the elbow in the “funny bone” groove (medial epicondyle of the humerus), which makes it susceptible to a compression injury during surgery, if that area is not properly positioned and padded.

This is exactly what the plaintiff’s expert witness and anesthesiologist concluded happened in this case. The medical expert wrote a Chapter 74 expert report detailing his opinion that the entire surgical team, including the orthopedic surgeon, anesthesiologist, physician’s assistant, and registered nurses all shared the responsibility for positioning, padding, and supporting surgical patients in such a way that the ulnar nerve is not subjected to compression and/or stretching.

The defendants filed objections to the plaintiff’s expert report and motions to dismiss, which were denied by the trial court. The First Court of Appeals, in Houston, upheld the trial court’s rulings in favor of the plaintiff.

One of the defendants objected that the report was insufficient because it contained fatal inconsistencies about whether the patient’s injuries could have been caused by ulnar nerve damage. The court rejected that objection, though, because the defendant relied on records outside of the expert report. 

There's a tremendous body of law that's clear: Trial courts are to look no further than the four corners of the plaintiffs' expert reports when making the early-stage decision on whether a medical malpractice case can proceed. Despite this case law, just recently a lawyer for a defendant physician in a lawsuit that I'm handling made the same losing argument. 

Another argument that the appellate court rejected is that the report was insufficient because it stated the same standard of care for all of the defendants. Many defendants and their lawyers would like to require plaintiffs to hire multiple experts to testify about the same standard of care that applies to defendants of different specialties. Texas courts have long rejected this argument, though, when the medical expert testifies that the same standard of care applies across multiple disciplines.

In this case, the anesthesiology expert was clear in his opinion. Surgeons, anesthesiologists, nurses, and other operating room personnel all share the same responsibility under the standard of care to provide adequate positioning and padding to protect the ulnar nerve during surgery.

Finally, the defendants objected to the opinion of the plaintiff’s expert that the patient’s position “likely” shifted or changed during the surgical procedure. Both the trial and appellate courts rejected this argument because it is ultimately up to the jury to determine whether the expert’s opinion is correct in such conclusions.

In my experience, many defendants and their attorneys like to have their cake and eat it, too. They want courts to require plaintiffs to meet the higher evidentiary standard of summary judgment or trial without having any discovery or investigation of the lawsuit.

Experienced Texas medical malpractice attorneys who represent patients and their families know how to handle these defense objections when confronted with a Chapter 74 report challenge or motion to dismiss.

We are here to help

If you or a loved one has been seriously injured or even died because of poor medical, surgical, or hospital care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.


Robert Painter is a 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 against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

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.