Texas medical malpractice expert reports: Almost right isn't good enough

Have you heard the expression “no harm, no foul?”

I remember playing basketball way back in high school, and that was the players’ sentiment toward referee calls.

In contrast to a basketball court, Texas courts don’t take this approach when it comes to medical malpractice plaintiffs complying with tort reform gate-keeping measures. That’s why it’s so important for injured patients to hire an attorney with significant experience in handling Texas medical malpractice lawsuits.

A recent opinion from Houston’s 14th Court of Appeals illustrates what can happen when a medical malpractice plaintiff doesn’t follow the letter of the law. By the way, this was not a case that Painter Law Firm handled. The case is styled James Rinkle, M.D. v. William Graf and Linda Graf, No. 14-22-00225-CV. You can read the opinion here.

Before getting into what happened in the case, we should briefly discuss the most burdensome provision of the 2003 round of Texas tort reform law. It requires medical malpractice plaintiffs to serve defendants with at least one written medical expert report early in the litigation. Specifically, the due date is 120 days after each defendant files an original answer in a lawsuit. If the plaintiff misses the deadline for any reason, the defendant can file a motion for dismissal, which the trial court must grant, along with an order for the plaintiff to pay the defendant’s attorney’s fees.

I italicized the word serve in the preceding paragraph because it’s important to this case.

Under Texas Rule of Civil Procedure 21a, a party can serve an instrument in person, by mail, by commercial delivery service, by fax, by email, or by electronic filing manager. Because the preliminary expert reports must be served, these are the options available to medical negligence plaintiffs.

In the Rinkle case, the plaintiffs’ attorney filed the expert report with the court clerk before the defendant had been served with the original petition or appeared in the lawsuit.

After Dr. Rinkle filed an answer and appeared in the lawsuit, his attorney accessed the expert report from the court clerk’s website. The plaintiffs didn’t actually serve a copy of the expert report on the defendant, though.

No harm, no foul, right?

Wrong!

Well, the trial court denied the defendant’s motion to dismiss. When the defendant took it up to the Houston Court of Appeals, though, the trial court’s order was reversed and remanded. This means that the plaintiffs’ case was dismissed, with instructions for the trial court to enter an award of attorney’s fees that the plaintiffs will have to pay to the defendant.

The appellate court’s opinion noted that the fact that the defendant had actual knowledge of the report was immaterial and wasn’t the required service. The court stated, “This court and others have already concluded that actual knowledge and receipt of the expert report is insufficient if service was not properly accomplished on each defendant.”

This is an unfortunate case where the plaintiffs and their attorney followed the spirit of the expert report requirement, but not the letter of the law. And that just doesn’t cut it under the strict Texas law.

I’ve often said Texas medical malpractice law is a veritable minefield. If you’ve been injured because of poor physician or hospital care in Texas, contact a top-rated, experienced Texas medical malpractice attorney for a free strategy session about your potential case.

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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.