In this year’s session, the Texas Legislature made a significant change to the gatekeeper role of the medical malpractice tort reform law. Unlike the statute in a whole, I believe that this amendment will be helpful to medical malpractice plaintiffs.
A primer on Texas tort reform
Before getting into this year’s amendment, let’s briefly revisit how medical malpractice tort reform works in Texas. Broadly speaking, there are two functions. First, there is a gatekeeper role to prevent or discourage certain types of cases from making it to the jury. Second, there are damages caps that apply to all medical malpractice claims.
The Texas Medical Liability Act gives trial courts a gatekeeper function over health care liability claims through an expert report requirement that’s codified in the Texas Civil Practice & Remedies Code Section 74.351.
Early in the litigation, a medical malpractice plaintiff must produce an expert report and curriculum vitae from one or more physician and health care experts. The written expert report must identify the applicable standard of care, who violated it and how, and how that caused harm to the patient. Texas appellate courts have held that the expert reports must be detailed enough to satisfy to the trial court that the claim has merit and to provide the defendant with fair notice of the criticisms.
If a plaintiff fails to timely serve a mandatory expert report, upon the defendant’s motion, the case must be dismissed and the plaintiff must pay the defendant’s attorney’s fees. Even when a plaintiff timely produces a report, a defendant has 21 days to file objections to the legal sufficiency of the report. If the trial court ultimately agrees that the report is insufficient—and can’t cure any issues within 30 days of the court’s order—then the case will be dismissed and the plaintiff will have to pay the other side’s attorney’s fees.
Then there’s the issue of damages caps. Many people, including some attorneys who aren’t familiar with healthcare liability claims, believe that there are absolute caps on all kinds of damages in medical malpractice cases. That’s incorrect. There are no caps on economic damages, including things like lost income or medical expenses. Caps do apply, though, to non-economic damages, including elements such as mental anguish, pain and suffering, and impairment. Depending on who and how many defendants are suited, the non-economic damages cap can be as little as $250,000 and as much as $750,000.
Senate Bill 232 discourages defense “gotcha” maneuvers
Senate Bill 232 became law without the Governor’s signature on May 30, 2021, and becomes effective on September 1, 2021. It makes a significant change to the procedure for expert reports for some health care liability claims.
Given the draconian nature of the 2003 round of Texas medical malpractice tort reform, it came as no surprise to me that health care defendants and their insurance companies would try to expand the law’s scope into areas that have nothing to do with the provision of health care.
Perhaps the most famous abuse of the law was by a Dallas physician who unsuccessfully argued that a car wreck case should be dismissed because the plaintiff didn’t produce a medical malpractice expert report. The car wreck occurred when the doctor’s cattle got loose on a public road.
Texas appellate courts have rejected other more serious attempts by defendants to expand the expert report requirement to some premises liability (slip and fall) and esthetician claims, for example.
It has taken a significant amount of judicial resources, and added to the time and expense of litigation for the parties, to resolve disputes over whether the expert report requirement applies to a particular case. Plus, it presents an uncomfortable risk to plaintiffs: If the plaintiff reasonably thinks a claim doesn’t fall within the tort reform statute and, thus, doesn’t secure an expert report, but the defendant and court disagree, the consequences are severe.
These are the problems that Senate Bill 232 addresses.
The legislation creates a new statute, Texas Civil Practice &and Remedies Code Section 74.353, entitled Preliminary Determination for Expert Report Requirement. Here are the changes the statute created:
• A plaintiff may file a motion for the trial court to issue a preliminary determination regarding whether the claim is a health care liability claim for the purposes of the expert report requirement of Section 74.351. The motion must be filed within 30 days after the date that each defendant’s original answers was filed.
• The trial court may rule that the plaintiff’s claim is a health care liability claim. If the court makes such a ruling, then the plaintiff must serve a medical expert report by the later of: (1) 120 days after the date each defendant’s original answers was filed; (2) 60 days after the court’s order; or (3) a date agreed-to in writing by the parties.
• If the trial court doesn’t make the preliminary determination ruling within 90 days of the plaintiff’s motion, then the trial court shall issue a preliminary determination that the claim is covered and falls within the Section 74.1351 expert report requirements.
• If a defendant disagrees with the trial court’s decision, it may take it up on interlocutory appeal (before the end of the case). If the appellate court reverses the trial court’s order, then the plaintiff has 120 days to serve an expert report, calculated from the date of the appellate court order.
I welcome this amendment because it will reduce frivolous defense arguments while providing more predictability and efficiency to the resolution of claims involving health care providers.
If you’ve been seriously injured because of poor hospital, medical, or physician care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer about your potential case.