For plaintiffs in Texas medical malpractice cases, one of the daunting challenges of getting a case off the ground is securing a physician expert—and sometimes other experts—who’s willing to write a report that details the standard care, how the defendants didn’t meet it, and how those errors caused harm to the patient.
Under Texas Civil Practice & Remedies Code Section 74.351, a plaintiff must serve this preliminary expert report within 120 days of each defendant filing an answer in the lawsuit. Plus, the expert report has to be done in the absence of any discovery or depositions other than the medical records.
Once the expert report is served, the games sometimes only begin.
Texas law allows defendants 21 days from the date they receive a Chapter 74 expert report to file objections. If the objections are ultimately sustained by the trial court, then the judge must dismiss the case and order the plaintiff to pay the defense attorney’s fees. Talk about adding insult to injury—literally!
Chapter 74 objections come in all shapes and forms. Sometimes defendants allege that an expert report doesn’t adequately define the standard of care. Other times, they claim that they don’t have a clue as to what criticisms the expert is making against them, even though it's spelled out in plain English in the report. On other occasions, defendants argue that the alleged violations of the standard of care aren’t adequately linked to causing the patient’s injuries.
On top of all of these types of objections, there’s another one that’s pervasive. Defendants can object to the qualifications of a medical expert to author a report in the first place. While every medical malpractice case will require a physician expert report, whether a physician is qualified to write a report in a particular case depends on his or her education, training, and experience in the direct issue in the case.
One of the things that drives many defense lawyers bonkers is when a plaintiff relies on a Chapter 74 expert report from a physician who practices in a different specialty than that of the defendant. In part, I think that this worn-out objection is made so often because defense lawyers are used to a reasonably unlimited budget for hiring expert witnesses to fight off legitimate medical malpractice claims by patients. I know this because I began my legal career as a defense attorney in the health litigation department of a large, prestigious law firm in downtown Houston, Texas. In their mind, they think that plaintiffs should do the same thing, even if it’s an unnecessary waste of resources.
For years, appellate courts in Texas have entered opinions in a line of cases that make it clear that a doctor from one specialty can write an opinion about the care of a doctor in another specialty, so long as the standards of care and practice are substantially developed in both fields. In my practice, I make sure that expert witnesses whom we hire at Painter Law Firm spell this out in their Chapter 74 expert reports.
A recent case out of Houston’s Fourteenth Court of Appeals addressed this same issue in the context of when an expert’s report didn’t come straight out and say that the standards of care were substantially developed in both fields. The case is styled First Nobilis Surgical Center, LLC d/b/a First Street Surgical Center and Michael Ciaravino, M.D. v. Patricia Phillips, No. 14-18-00772-CV, In the Fourteenth Court of Appeals. You can read the opinion here.
Briefly, the underlying facts of the case involved a patient who had a plastic surgeon, Dr. Ciaravino, replace her saline breast implants with silicone implants at First Street Surgical Center, an ambulatory surgery center. In less than a week after the surgery, she had symptoms consistent with infection. When the wounds were cultured, they revealed positive growth for Klebsiella oxytoca and Serratia marescens, both of which are considered hospital-acquired bacterial organisms that are normally found in the human colon.
In support of her case, the plaintiff offered an expert report from an infectious diseases physician. The defendant, Dr. Ciaravino, objected to the qualifications of the infectious diseases expert because he’s not a plastic surgeon and on the grounds that he:
• Offered no insight for where his promoted standards of care originated.
• Didn’t state that the peri-or post-operative standards of care he mentioned were substantially developed in the surgical arena or, more specifically, the plastic surgery arena.
• Dared not to say that he had practical knowledge of what is usual or customary for plastic surgeons in the same peri-or post-operative situation that confronted Dr. Ciaravino.
The court of appeals opinion noted that the defendant’s overarching complaint was that an infectious diseases surgeon isn’t qualified to offer an expert opinion on the relevant post-operative standards in this particular case because he’s not a plastic surgeon. The court seemed incredulous in saying that the plastic surgeon “seemingly takes the position that [the infectious diseases expert] is not qualified to render opinions in this case because [his] specialty is in a different medical discipline from his own.”
The court embraced existing Texas Supreme Court precedent that not every licensed physician is qualified to testify about every medical question, stated in Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996), that “expert qualification should not be too narrowly drawn.” Larson v. Downing, 197 S.W.3d 303, 305 (Tex. 2006). This is where things got interesting.
I think the most important part of the opinion directly and tacitly rejects all of the plastic surgery defendant’s arguments. The court threw out as baseless the following arguments:
• Rejected: The plastic surgery defendant’s contention that an infectious diseases physician was unqualified to write an expert report because he didn’t say that the post-operative standards are substantially developed in plastic surgery and infectious disease medicine.
• Rejected: The plastic surgery defendant’s argument that the infectious diseases physician’s statement of credentials didn’t mention “practical knowledge of what is usual or customary for plastic surgeons” in the “post-operative situation that confronted Dr. Ciaravino”
• Rejected: The plastic surgery defendant’s omission of mentioning that “the standards advanced are generally accepted in the medical field, much less plastic surgery.”
The court stated in an excellent analysis that “post-surgery care of an infection is not specific to plastic surgeons. Infections are not diagnosed and treated differently by plastic surgeons than other physicians who diagnose and treat infections.”
After so many years of practice devoted to medical malpractice cases in Texas, it’s refreshing to see our appellate courts taking a common-sense approach when analyzing what's sufficient to make an adequate Chapter 74 report.
If you’ve been seriously injured because of medical errors or mistakes, your best bet is to hire a top-rated Houston, Texas medical malpractice lawyer, who can help guide you through this complex area of law.
