One of the early legal skirmishes in many Texas medical malpractice cases is over the degree of detail that the plaintiff’s medical experts must provide in the preliminary reports required by the tort reform statute, Texas Civil Exemption Remedies Code Section 74.351.
In some cases, these reports can be devilishly challenging for plaintiffs because of poor or lacking medical record documentation by defendants. The same defendants then want to use their poor record-keeping as both the shield and sword.
Despite benefiting from a discovery stay—Texas medical malpractice plaintiffs aren’t entitled to written discovery of documents other than the medical records or any depositions before the preliminary expert reports are served—some defense attorneys and their healthcare clients repeatedly try to get courts to require plaintiffs to prove their entire case before they’ve even started.
Increasingly, Texas trial and appellate courts are onto this game and are shutting down these abusive defensive tactics.
One of the common areas of attention by defendants is causation. More precisely, proximate causation has two elements that must be addressed in a plaintiff’s threshold medical expert report. First, the expert must identify the negligence at issue and link it as a cause-in-fact of the plaintiff’s injuries. Second, the expert must explain how it would have been foreseeable to a reasonably prudent healthcare provider that the substandard conduct at issue subjected the plaintiff to risk of injury.
While that straightforward, some defendants have litigated and appealed their contention that plaintiffs’ experts should do much more when it comes to causation, by ferreting out and itemizing damages or impairments from pre-existing injuries. At trial, it’s up to the plaintiff to put on evidence of this important distinction. Defendants should not be held liable for injuries and medical expenses that pre-date their negligence.
But the time for that distinction is not out of the gate, it’s at the Chapter 74 stage. Indeed, the Texas Supreme Court recently recognized that a Ch. 74 expert report is required to establish the causal link between the health care provider’s negligence and the claimant’s injury, not prove the claimant’s damages model. That case is styled Coming Attractions Bridal & Formal, Inc. v. Tex. Health Res., 595 S.W.3d 659, 666–67 (Tex. 2020).
In Premieant Inc. v. Snowden, the San Antonio Court of Appeals explained that, “The expert report is not required to prove the defendant’s liability, only to provide notice of what conduct forms the basis of the plaintiff’s claims.” No. 04-19-00238-CV, 2020 WL 1159055, at *8 (Tex. App.—San Antonio Mar. 11, 2020, no pet.) (mem. op.)
Part of the competence of handling medical malpractice cases under Texas law is knowing what’s required at the different stages of litigation. If you’ve been seriously injured because of poor medical health care, then contact a top-rated, experienced Houston, Texas medical malpractice lawyer to discuss your potential case.
