The Fort Worth Court of Appeals recently entered an opinion supporting a trial court’s ruling that a medical malpractice plaintiff’s preliminary “Chapter 74” expert reports were sufficient under the law.
The case is styled Cook Children’s Medical Center, Cook Children’s Health Care System and Cook Children’s Physician Network and Jose Olarte-Motta, M.D. v. C.R. and A.B., Individually and as Natural Guardians and Friends of G.R., a minor; Case No. 02-18-00248-CV, In the Fort Worth Court of Appeals.
What are Chapter 74 expert reports?
Texas Civil Practice & Remedies Code Section 74.351 requires plaintiffs to produce one or more medical expert reports within 120 days of each defendant filing an answer in a medical malpractice lawsuit. These so-called Chapter 74 expert reports must separately discuss the applicable standard of care of each healthcare provider, how the standard was missed, and how the medical errors foreseeably caused harm to the plaintiff.
Once expert reports are timely served, Defendants have 21 days to file objections to the sufficiency of them. In the Fort Worth case, the hospital filed, as the court described it, a bevy of objections to the Chapter 74 reports that were critical of its care of a little girl.
The girl’s injuries
As a father of four children, I know that household injuries can happen in an instant. This little girl’s problem started when she fell head-first into a bucket that contained cleaning solution with bleach. Her parents rushed to the hospital, where she was checked out and diagnosed with mild irritation of her esophagus and stomach. Within two days, though, she was discharged because she was eating and drinking, even though she still had some residual vomiting.
Three days later, her parents noticed that she was vomiting more and had increased diarrhea. She also wasn’t eating and drinking as much. She was re-admitted to the hospital through the emergency room, where she continued to eat and drink but vomited every now and then.
Five days later, she started having activity that her providers felt was a seizure. She was transferred to the pediatric intensive care unit (PICU) to be followed closely. Her physicians placed a breathing tube down her throat to secure her airway in a process called intubation. Intubation helps ensure that a patient receives adequate oxygenation.
About five days into her intubation, the breathing tube became dislodged and was re-inserted. Just over four hours later, her heart rate and oxygen saturation were dangerously low. When her healthcare providers discovered this, they removed the breathing tube, gave her supplemental oxygen, and started cardiopulmonary resuscitation (CPR). Unfortunately, it was too late, and she developed hypoxic/ischemic encephalopathy, a permanent injury caused by inadequate blood flow and oxygen going to the brain.
Challenging the expert report
To satisfy the requirements of Chapter 74, the plaintiffs timely produced an expert report from a prestigious pediatric critical care medical school professor. The hospital objected to the adequacy of the report on multiple grounds. When shot down by the trial court, the hospital pursued an expedited interlocutory appeal to the Fort Worth Court of Appeals, where it lost again.
Concerning the standard of care and breach, the Second Court of Appeals found that the expert report was sufficient as to the hospital. The expert wrote in his report that the doctors, nurses, and other PICU providers are all responsible for monitoring their patients continuously. He explained that this is important because if a patient’s oxygenation and other vital signs drop, providers can check to see if the breathing tube became dislodged (extubation) and reestablish the airway within two or three minutes. The professor explained in his report that the timing is crucial because the patient began to suffer brain damage after three minutes.
The court approved of the expert’s explanation that:
“Maintaining an airway and oxygenation to a pediatric patient is the most important function of a PICU as failure to do so or [a] delay in doing so will result in severe injury or death to the patient. Severe hypoxic/ischemic injury to the brain occurs when the brain is deprived of oxygen. Brain cells are extremely sensitive to oxygen deprivation, and damage can occur after three minutes and the brain cells can begin to die within five minutes after oxygen supply has been compromised. Hypoxic/ischemic injury to the brain can be caused by any event that severely interferes with the brain’s ability to receive and process oxygen. . . . It is my expert opinion that a PICU pediatric patient on assisted ventilation . . . who is being treated in a PICU . . . And who suffers a misplaced or plugged endotracheal tube or unplanned extubation/dislodgment of the endotracheal tube is in immediate danger of respiratory failure and catastrophic neurological damage or death if oxygenation and ventilation are not reestablished within 2-3 minutes.”
The hospital also objected to the expert report’s discussion of causation. A Chapter 74 physician expert must link the substandard conduct to actual harm to the patient. The court found that the expert’s discussion adequately explained the “how” and “why” of how the hospital’s breaches caused the little girl’s brain injury.
The Second Court of Appeals noted that the expert explained that undetected deoxygenation led to the cardiac event, causing cardiac arrest and catastrophic neurological damage. The expert noted that the patient went without oxygenation for over 10 minutes, which could’ve been avoided if her vital signs had been adequately monitored over a 40-minute span.
Other potential causes
As a Houston, Texas medical malpractice attorney, I’ve seen an increasing number of defendants and appellate court cases discussing whether a plaintiff’s Chapter 74 expert adequately ruled out other potential causes. I think it is always a good idea for a plaintiff to at least address other potential causes that are referenced in the medical records or autopsy report, if applicable.
In the Fort Worth case, a physician who is apparently employed or affiliated with the hospital reviewed the data and records after the fact. This physician concluded that the patient’s injuries were related to a cardiac/heart episode, rather than any mechanical problem with the breathing tube. The appellate court found it significant and acceptable that the plaintiff’s Chapter 74 expert addressed this alternative theory and then ruled it out with this sentence: “Based on history, her EKG, her echocardiograms, and review of the monitor, I do not feel this was a primary cardiac event.”
Quite often, defendants misuse this preliminary expert report stage to ask courts to dispose of cases where they simply disagree with the findings of a Chapter 74 expert. The Fort Worth Court of Appeals shot this practice down, remarking that whether the opinion of one physician or another is correct is not an issue to be addressed at this early stage of litigation.
What this means
This is an excellent and well-reasoned opinion that adds to the growing body of Texas appellate law supportive of reasonable, good faith efforts by plaintiffs to comply with the statutory expert report requirements.
It’s important for individuals seriously injured as a result of medical malpractice to hire attorneys with direct experience and knowledge in this complex area of law.
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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.
