Texas law is rather unfriendly to medical malpractice plaintiffs, imposing some tough standards to be overcome near the beginning of cases.
The major hurdle is at 120 days after each hospital, doctor, or healthcare provider files an answer in a new medical negligence lawsuit. This deadline requires plaintiffs to produce one or more expert reports that provide defendants with fair notice of the allegations against them and trial courts with an indication that the claim has merit.
These preliminary expert reports—called Chapter 74 reports—must identify the standard of care and how each healthcare provider didn’t meet it. While not all expert reports must be written by physicians—some may written by nurses, pharmacists, or academics—at least one physician expert is necessary to connect the dots between the mistakes of the healthcare providers and how they caused injury or death to the patient.
One of the challenges for plaintiffs in obtaining the necessary Chapter 74 reports by the deadline is the discovery stay imposed by Texas Civil Practice & Remedies Code Section 74.351. Until there’s an “adequate” expert report (which is frequently objected to and debated by defendants), plaintiffs are stripped of discovery tools to complete their investigation into the case, other than obtaining medical records. This means no subpoenas, depositions, production of hospital policies and procedures, or really anything else.
As a result of the discovery stay and the preliminary nature of Chapter 74 expert reports, appellate courts have given experts some flexibility on the information they can rely on to inform their opinions.
Hearsay is okay
One area that I have found both interesting and helpful is that, in many instances, experts are allowed to rely on hearsay statements as a basis for the Chapter 74 reports. That’s what the Texas Supreme Court concluded in a published opinion styled In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 (Tex. 2007).
This means that Chapter 74 experts can rely on interviews with patients or family members, diaries, or other informal documents to fill in the information gaps that plague medical records.
Reasonably prudent physicians
Another area of flexibility afforded to Chapter 74 experts concerns their opinions on what would have likely happened if the malpractice or mistakes hadn’t occurred.
Frequently, experts have opinions that, for example, if a registered nurse had informed a physician of additional information, then the physician would have made different decisions or orders that would’ve led to a safe outcome for the patient.
For instance, I’ve had a number of birth injury cases where nurses didn’t inform the OB/GYN doctors of a lack of fetal movement or decelerations on the fetal monitor strip. Experts believed that the OB/GYN physicians would’ve ordered an emergency delivery by C-section if the nurses had provided them with that additional information.
Healthcare defendants really hate that type of testimony. They fight tooth and nail to say that it is speculative and that no one really knows what another healthcare provider would’ve done in the circumstances described in an expert report.
Appellate courts have generally sided with plaintiffs on these disputes, holding that physician experts are entitled to form opinions as to what a reasonably prudent physician or specialist would’ve done if the negligent care had not occurred. Houston’s Fourteenth Court of Appeals agreed with this analysis in an important decision styled Methodist Hospital v. Shepherd-Sherman, 296 S.W.3d 193, 200 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
When it comes to medical malpractice claims, experience matters
These types of challenges and counter-techniques are just a few of the reasons why it’s important for people seriously injured from healthcare mistakes to hire Texas attorneys with significant experience in handling medical malpractice lawsuits.
We are here to help
If you or a loved one has been seriously injured by hospital or physician care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
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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 2018, 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.
