There are some unique tort reform requirements that apply to medical malpractice cases in Texas. One of the most cumbersome ones is the so-called Chapter 74 expert report, named after the statute that requires it, Texas Civil Practice & Remedies Code Section 74.351.
Depending on the facts of the case, plaintiffs may need more than one expert report to meet the legal requirements. Sometimes the Chapter 74 reports are from multiple physicians. Other times, there will be physicians and a nursing expert. There will always be at least one doctor, though, to tie the alleged negligence to the plaintiff’s injuries with causation opinions.
Discovery stay
Many plaintiffs become frustrated at how defendants can use Chapter 74 to delay discovery and investigation in medical malpractice lawsuits. This ultimately translates into a delay in the resolution of the case through mediation and settlement or trial.
Defendants have the option of enforcing a discovery stay while the Chapter 74 reports are being sorted out. When a discovery stay is in place, it’s automatic and means that no depositions can be taken and no substantive written discovery can occur until the expert report requirement has been met.
In some circumstances, the delay in moving on with the case can last many months. That’s why I have a strong preference in having the Chapter 74 reports ready, or at least close to ready, as soon as I file a new medical malpractice case for a plaintiff.
The statue requires that a plaintiff serve Chapter 74 expert reports by 120 days after each defendant files an answer in a medical malpractice lawsuit. If a defendant invokes the discovery stay, and the plaintiff doesn’t complete and serve expert reports until the last possible day, there would be a four month delay.
But it doesn’t end there.
Once a plaintiff serves Chapter 74 expert reports, defendants have 21 days to file objections that they’re not sufficient in some way. To be sufficient, expert reports must provide defendants with fair notice of the plaintiff’s claim, including defining the standard of care, how the defendant violated the standard, and how the plaintiff was harmed. In addition, a sufficient expert report must satisfy the trial judge that the claim is not frivolous but has merit to proceed.
While some defense objections are legitimate, in my experience, most are not.
Once a defendant objects to the adequacy of the plaintiff’s expert reports, the defendant can continue to enforce the discovery stay until the trial court makes a ruling that the reports are sufficient. That, of course, requires scheduling an oral hearing. That can add weeks and, rarely, months of inactivity, depending on the court’s docket and schedule.
The stakes for plaintiffs at one of these hearings is high. If the trial court sustains or agrees with defense objections, then the case can be dismissed and the plaintiff can be ordered to pay the defendant’s legal fees.
If the trial court believes, though, that the timely-served expert reports can be edited or supplemented to bring them into compliance with the law, then the court must grant the plaintiff one 30-day period to do so.
If the trial court ends up ruling in the plaintiff’s favor on the sufficiency of the Chapter 74 expert reports, defendants have another option. They can file an interlocutory appeal to an intermediate appellate court. This basically asks the higher court to grade the trial court’s paper—and overturn the trial court’s decision—all while the trial case moves forward at a snail’s pace.
We are here to help
Medical malpractice victims are well-served by hiring experienced Texas medical malpractice lawyers who understand the ins and outs of Chapter 74. This includes how to meet the standards and get cases resolved.
If you or a loved one has been seriously injured because of medical, hospital, or surgical care, 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, Beaumont, 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. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
