The San Antonio Court of Appeals recently entered an important opinion in a breast cancer misdiagnosis case where the defendant radiologist challenged the sufficiency of the patient’s preliminary expert report. The case is styled Mark Healy, MD v. Orinda Mowa-Cudd, 04-20-00479-CV, San Antonio Court of Appeals (2/17/21) you can read the opinion here.
The plaintiff’s allegations are straightforward.
In 2018, radiologist Dr. Healy reviewed a mammogram of the plaintiff, compared it to her 2016 mammogram, and concluded that it showed no suspicion for malignancy. Later, a different doctor diagnosed this patient with a malignant breast cancer in her left breast called infiltrating ductal carcinoma.
The patient filed this medical malpractice lawsuit, alleging that Dr. Healy misinterpreted her 2018 mammogram, leading to a delay in diagnosis and treatment of her cancer.
In any Texas state court medical malpractice claim, a plaintiff must serve one or more medical expert reports on the defendant, within 120 days of that defendant filing an answer in the lawsuit. The expert reports must provide fair notice to the defendant of the allegations being made, including definition of the applicable standard of care, how it was violated, and how such mistakes proximately caused injury. Additionally, the expert reports should satisfy the trial court that the claim is not frivolous and has merit.
One of the challenging aspects of complying with the expert requirement so early in litigation is the lack of any documents or testimony other than the medical records. In exchange for plaintiffs having to jump that hurdle, the Texas Supreme Court has repeatedly set the bar low for what’s required of plaintiffs in meeting the expert report standard.
Nevertheless, many healthcare defendants, such Dr. Healy, continue to try to hold plaintiffs to a higher standard of proof, much like what would be expected at a summary judgment stage for trial.
To comply with the expert report requirement, the plaintiff in this case produced a report from a licensed physician who is a diagnostic radiologist with board certification from the American Board of Radiology.
The radiology expert’s report and accompanying curriculum vitae (resume) establish that he is an active physician with substantial training and experience in interpreting mammograms, which was the exact type of healthcare that the plaintiff had sought from the defendant radiologist. Additionally, the expert radiologist noted that his clinical practice includes the diagnosis, care, and treatment of patients like the plaintiff and that he works with primary care physicians on a daily basis in the care of patients like the plaintiff. Under well-established case law, a plaintiff’s expert must have significance in the specific area at issue in the lawsuit. Here, the expertise fit like a glove.
The defendant radiologist challenged the sufficiency of the expert report, contending that the plaintiff’s radiology expert wasn’t qualified to present expert testimony on causation. In other words, the defendant radiologist contended that a clinical physician such as in oncologist, rather than a non-clinical physician such as a radiologist, would be necessary to link deviations from the standard of care to the causation or outcome in this case.
The defendant took this particular issue with one sentence in the expert report, which stated that, “This delayed the diagnosis of the disease process and permitted the progression of metastatic disease.”
The San Antonio Court of Appeals ruled that the trial judge didn’t abuse discretion in finding that the plaintiff’s report was adequate. The appellate court noted that the expert linked his conclusions to the specific facts of the case, contending that the defendant radiologist should have:
• Compared the 2018 mammogram to her abnormal 2016 mammogram and earlier normal mammograms.
• Requested additional workup and followed up with the patient or her obstetrician.
• Specifically identified in his radiology report the focal density and microcalcifications that are visible on the mammogram.
In short, the radiology expert didn’t contend that the defendant’s mistakes caused breast-cancer to form the first place, but rather that his negligence allowed the tumors to continue growing without being diagnosed or treated.
In addition, the defendant was critical of the plaintiff’s radiology expert for failing to quantify the difference between the patient’s condition on the date the abnormality should have been recognized and the date those abnormalities were actually recognized. This requirement is inappropriate at the preliminary stage of proceedings, but rather something to be sorted out by the jury (finder of fact) at trial.
The court cited its own and Texas Supreme Court precedent for the proposition that a preliminary expert report is only required to establish a causal link between the doctor’s (or healthcare provider’s) negligence and the patient’s injury but doesn’t have to prove the patient’s damages model. In other words, in the preliminary report stage, it’s not necessary to ferret out the differing degree of damages related to delayed diagnosis.
If you’ve been seriously injured because of cancer or other misdiagnosis in Texas, then contact a top-rated experienced Houston, Texas medical malpractice lawyer about your potential case.
