As a Houston, Texas medical malpractice attorney, I regularly must respond to defense attempts to have a trial court dismiss a new case shortly after it is filed.
These often-frivolous defense tactics are allowed under Texas Civil Practice & Remedies Code Section 74.351. This statute requires a medical malpractice plaintiff to serve a medical expert report, with an accompanying resume or curriculum vitae of the expert, on each defendant. The deadline for doing so is 120 days from the date each defendant files an answer in the case.
The report must establish the expert’s competence and qualifications to write it, as well as separate statements regarding the applicable standard of care, how it was breached and by whom, and then link such sub-standard care to the plaintiff’s harms, losses, and injuries.
While this unusual legal provision is a challenging task for plaintiffs to do up-front in the litigation process, Texas law adds another twist. There is a “discovery stay” on anything but medical records until there is a sufficient report. That means a plaintiff cannot take the depositions of doctors or nurses or obtain hospital policies and procedures that an expert might wish to review in order to form opinions.
Of course, what is sufficient under the statute is in the eyes of the beholder. Texas law allows a defendant to file objections to a “Chapter 74 report” within 21 days of it being served. In my experience, I have seen frivolous defense objections ranging from absurd to downright comical.
One Houston defense lawyer actually wrote in a Chapter 74 report objection filed with a Harris County trial court that her client objected to the plaintiff’s expert report, as well as any future expert reports that had not even been written!
In many other cases, defense lawyers argue with a straight face that their highly-trained physician and healthcare provider clients simply cannot understand a plaintiff’s expert report, which was written by another doctor. I’ve always felt that such arguments undermined the credibility of defendants as competent healthcare providers, but that’s another story.
In my opinion, many defense lawyers abused the Chapter 74 objection process for several years after this new law went into effect in 2003. In many cases, regardless of how the trial court ruled on the objections, the losing party took it up on an interlocutory appeal—meaning that the case was put on hold while a higher court review what happened.
In time, I believe that the intermediate appellate courts and the Texas Supreme Court got tired of the volume of such cases and started requiring trial court judges to give a plaintiff a one-time second chance to serve a new report to address any defense objections. In other words, trial courts should not dismiss a medical malpractice case when a plaintiff made a good faith effort to follow the law.
As a result of the appellate reins being tightened, I noticed that defense challenges to Chapter 74 expert reports waned. In recent years, though, I have noticed an upswing in the defense practice. The other day, I spoke with a defense attorney who filed objections to an expert report. She said, “I think it’s borderline legal malpractice not to file an objection to any plaintiff’s expert report.”
I’ve represented a number of clients with lawsuits involving care at hospitals in the Houston Methodist system, whether Houston Methodist in the Texas Medical Center, Houston Methodist St. John Hospital, or Houston Methodist Willowbrook Hospital.
I can’t think of a single lawsuit that I have filed against a Houston Methodist hospital where the hospital didn’t file an objection to my client’s Chapter 74 expert report.
Therefore, I read with interest an August 23, 2018 opinion from Houston’s First Court of Appeals about a Houston Methodist Willowbrook Hospital case. The case is styled Nancy Carmen Curnel et al. v. The Methodist Hospital, TMH Health Care Group (the in-house physician group managed by the hospital) et al., Case No. 01-17-00742-CV, First Court of Appeals. The case is on appeal from the 55th District Court in Harris County, Texas.
The basic medical facts of the case are that the patient went to the hospital with elevated liver enzymes caused by a newly-prescribed antibiotic she was taking. According to the plaintiff, a hospitalist who worked at Methodist Willowbrook Hospital did not evaluate her current medications for hepatotoxicity (liver toxicity).
Interestingly, I have handled several cases where medication reconciliation caused serious injury to patients. This is normally a process done by the nursing staff and reviewed by a physician. It involves getting all list of current and recent medications, so the doctor can get an idea if a medication problem could explain the patient’s presenting signs and symptoms.
Back to the appellate case. The plaintiff alleges that the hospitalist misdiagnosed her with viral hepatitis, ordered that she continue taking the antibiotic (that was causing liver toxicity), and admitted her to the hospital. From there, the patient argues that her care and condition at the hospital continued to go downhill.
To meet the expert report requirements of Texas law, the plaintiff timely served expert reports from a gastroenterologist and a registered nurse. As, in my experience, Houston Methodist’s lawyers routinely do, an objection was timely filed.
The trial court granted the objections and dismissed the case, refusing to give the plaintiff an extra 30 days to fix any problems with the report, as contemplated by Texas Civil Practice & Remedies Code Section 74.351(c).
The First Court of Appeals recited well-established case law that a trial court abuses its discretion if it fails to give a plaintiff a 30-day period to cure any report defects if: (1) the deficiencies are curable; and (2) the plaintiff made an objective good faith effort to comply with the statute. The court noted that the Texas Supreme Court has held that the trial court should err on the side of granting the extension. See Samlowski v. Wooten, 332 S.W.3d 404, 416 (Tex. 2011).
The appellate court sided with the plaintiff, ordering the matter remanded to the trial court for further proceedings on the basis of abuse of discretion for not allowing a 30-day period to cure the expert reports.
I always recommend that patients and families injured and impacted by medical negligence hire a competent medical malpractice attorney as soon as possible. The legal requirements under Texas law are exacting and demanding, and the gamesmanship of defendants when it comes to expert reports can be intense. That is why patients should get experience on their side.
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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 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
