I’ll never forget trying a case in the Lufkin, Texas federal courthouse years ago, which is part of the Eastern District of Texas.
The presiding federal judge had been recently appointed by President George W. Bush and confirmed by the U.S. Senate. As he was making introductory remarks to the jury, he commented how there were a lot of lawyers in the courtroom. He explained that both sides were represented by lawyers who had the roles of representing their clients.
In an amazing show of humility for a person occupying a federal bench, he went on to say how he, too, was a lawyer and was responsible for making decisions on how the law applied to the case. He talked about how he would do his best to make correct decisions, but that he, too, could get it wrong and if so an appellate court—more lawyers—would have the task of making that decision.
In the context of Texas state court medical malpractice cases, I bet the most common matters that go to appellate courts is whether trial courts made the right decision on the sufficiency of preliminary expert reports.
Under the 2003 round of tort reform, called the Texas Medical Liability Act, medical malpractice plaintiffs must comply with the unique requirement of producing preliminary medical expert reports. They’re due very early in the litigation, well before there’s an opportunity for a full investigation or discovery.
The purpose of these reports, according to the statute in appellate courts, is two-fold. First, the expert reports should satisfy the court that the claim has merit. Second, the expert reports should have sufficient details to provide fair notice to the defendant of the allegations in the lawsuit. To provide fair notice, an expert report has to define the standard of care, how it was breached and by whom, and link it to injury.
When defendants believe that a plaintiff’s expert reports aren’t sufficient to meet the statutory purposes, they have an opportunity to file objections and seek dismissal of the case. This gets teed up when a defendant files objections and a motion to dismiss, triggering a trial court hearing and decision.
The losing party may file an accelerated appeal of the trial court’s decision. The appellate court then reviews the record and the trial court’s decision based on an abuse of discretion standard. Trial judges are afforded a great deal of discretion in making decisions, but there are limits.
When analyzing appellate court opinions and their potential impact as precedent, it’s important to understand whether the decision finds that the trial court was within its discretion or abusing its discretion.
Appellate court decisions finding that a trial court abused its discretion are relatively uncommon in medical malpractice cases, but they do happen. Houston’s 14th Court of Appeals recently entered a memorandum opinion reversing a trial court’s abuse of discretion in the case styled Harry Reader v. Donald E. Hauser, MD, No. 14-20-00131-CV. You can read the opinion here.
Factually, the case began with the plaintiff seeking admission to the Right Step Behavioral Care facility for detoxification treatment for alcohol and opiates. He was treated with multiple prescription medications under two separate sets of physician orders, one focusing on alcohol addiction and the other for opiate addiction.
The next thing the plaintiff recalls is waking up at Houston Methodist Hospital after having an altered mental state. After he was discharged from the hospital, he filed a medical malpractice lawsuit against Dr. Hauser, related to his treatment at Right Step Behavioral Care.
The plaintiff timely served a medical expert report, noting that the facility staff inappropriately administered multiple medications that the patient did not need. After receiving these powerful medications, the plaintiff was sleeping an excessive amount of time and found to be unresponsive except to strong pain stimuli. That’s when he was transported to the hospital, where the doctor diagnosed him with an accidental drug overdose and resultant acute hypercapnic (high carbon dioxide level) respiratory failure. The overdose, according to the plaintiff’s expert, was at the hand of the facility staff.
Dr. Hauser’s lawyer filed objections and a motion to dismiss, arguing that the plaintiff’s expert report wasn’t detailed enough. The trial court agreed and dismissed the case.
The plaintiff took the trial court’s decision up on appeal to the 14th Court of Appeals, which reversed the trial court, finding an abuse of discretion.
The appellate court opinion started by finding that the plaintiff's expert report gave fair summary of the standard of care. The court quoted language from the report, including that the standard of care allows telephone orders from a physician for a patient undergoing withdrawal in medical detoxification treatment, but in-person assessment and monitoring of the patient response to intervention, including potential side effects, are required. The expert also defined the standard of care as requiring regular checks of vital signs and state of arousal, and communication between the nursing staff and supervising physician, when a patient is being given powerful medications.
As an aside, Painter Law Firm has handled multiple cases at skilled nursing facilities, rehabilitation centers, and behavioral centers where there is no on-site physician. But at some facilities, doctors only plan to come in once or twice a week. That means that, depending on when a patient is admitted to the facility, he or she may be treated with powerful prescription medications for a week before being seen by a physician. Our medical experts have agreed that this simply doesn’t comply with the standard of care.
The appellate court also noted that the plaintiff’s expert report detailed multiple breaches of the standard of care, including administration of medications that were not medically necessary and the failure to monitor patient response after giving medications. Also, notably, the expert quoted from the Houston Methodist Hospital emergency department records that the patient had not been seen by a physician while at the behavioral center.
Finally, the appellate court found that the medical expert adequately explained how Dr. Hauser’s care caused harm to the patient. The expert said, “It is important to understand that each of these medications have a set of properties when given alone, and the effect is cumulative and potentially synergistic when given together. This was the case here; eventually the medication burden led to an unintentional overdose of the patient.”
This is called polypharmacy and is one of the important patient safety considerations for why the standard of care requires close monitoring of patients after administration of medications.
By reversing the trial court’s judgment for abuse of discretion, the Houston Court of Appeals remanded the case back to the trial court so it could proceed further. This was a big win for the plaintiff.
If you’ve been seriously injured because of poor medical, hospital, or facility care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.
