Houston’s 14th Court of Appeals recently entered an opinion in a case closing an interesting timing and procedural issue that can impact Texas medical malpractice cases with multiple defendants.
The case is styled Kosar v. KPH-Consolidation, Inc. v. Kingwood Medical Center, No. 14-19-00401-CV, In the 14th Court of Appeals. You can read the opinion here.
The underlying dispute began when a patient named Betty Kosar sought care for a bariatric weight-loss procedure. She had a laparoscopic sleeve gastrectomy and hiatal hernia repair and had severe post-operative complications.
Laparoscopic procedures are minimally invasive because they only require small incisions through which equipment and a camera are inserted to allow the surgeon to complete the procedure. One of the known complications of laparoscopic abdominal procedures is the accidental damage or perforation of nearby organs, such as the stomach or bowel. Perforation is simply puncturing or cutting the organ, allowing the contents to spill into the abdominal cavity.
As a known complication, these incidental injuries are not considered a violation of the standard of care or negligence. That doesn’t mean, though, that when they occur is not possible for there to be a medical malpractice case. Instead, the focus is on whether the defendant surgeon promptly recognized the complication and properly repaired it.
Unfortunately, Betty experienced the complication in her surgery when her stomach was perforated. As is the case when such a complication occurs, she was very sick. The surgeon took her back to the operating room twice in an effort to correct the problem but was unsuccessful. She died after developing a massive infection and abdominal abscess, as well as an anoxic brain injury.
The family filed suit against several defendants, including the surgeon and Kingwood Medical Center, among others.
The Texas Medical Liability Act, a tort reform statute, requires medical malpractice plaintiffs to serve medical expert reports on each defendant within 120 days of such defendant filing an answer in the lawsuit. These expert reports must sufficiently detail the applicable standard of care, how the defendant violated the standard of care, and how such conduct proximately caused harm to the plaintiff.
After expert reports are served, a defendant has 21 days to object to the sufficiency of the reports. The trial court is to decide whether the expert reports are sufficient based on two factors: (1) whether they are sufficiently detailed to notify the defendant of the allegations of negligence; and (2) whether the claim appears to have merit and is not frivolous.
If a medical malpractice plaintiff misses the deadline, or if the trial court sustains a defendant’s objections to the sufficiency of a plaintiff’s medical expert reports, then the case is dismissed, and the court must enter an order requiring the plaintiff to pay the defendant’s attorney’s fees.
In the Kosar case, the plaintiffs served an expert report by a physician on Kingwood Medical Center. The hospital, in turn, objected to the sufficiency of the expert report. Ultimately, the trial court determined that the expert report was insufficient under the statute and dismissed the case.
This is the point where this case has an interesting procedural turn.
If a trial court denies a defendant’s motion to dismiss the case over expert reports, then the statute allows the defendant to seek an interlocutory appeal of that decision. Normally, a case can’t be appealed until there is a final judgment. In limited circumstances, such as this, an interlocutory appeal can be made before the case reaches the final judgment stage. In an interlocutory appeal, the entire trial court matter is put on hold while the question of whether the trial court’s decision in denying the motion to dismiss was correct. Once there’s a decision from the appellate court, the trial court matter fires back up.
In the Kosar case, the 14th Court of Appeals decision outlined how the statute only allows an interlocutory appeal for defendants, not plaintiffs, who are dissatisfied with the trial court order over medical malpractice expert reports. Thus, the appellate court dismissed the Kosar family’s interlocutory appeal on the ground that it lacked jurisdiction to consider it.
This leaves two options for medical malpractice plaintiffs in multi-defendant cases facing the situation. Neither of them is that appealing.
The first option is to get a final judgment as to the other defendants. This could be done either through settlement or taking the case to trial and getting a jury verdict. With a final judgment in hand, the plaintiff could then take the trial court’s dismissal order on the expert report issue up on appeal. If successful on appeal, then the plaintiff would have to re-try or attempt to resolve through settlement the case involving the sole remaining defendants.
The second option is to file a motion with the trial court to sever the dismissed defendant from the rest of the case. If granted, it would make the trial court’s dismissal order a final judgment that would be appealable. The problem with this approach, though, is that the trial court case against the remaining defendants could proceed with discovery and even to trial, while the appellate matter against the dismissed defendant was still pending.
As this case demonstrates, medical malpractice cases under the Texas Medical Liability Act can be complex. That’s why it’s important to hire a top-rated Houston, Texas medical malpractice lawyer if you’ve been seriously injured because of poor hospital or medical care.
