Medical Expert Reports Must Show Causation: Texas Supreme Court

Medical expert witness reports must make a good-faith effort to factually explain how and why a breach of the standard of care caused injury, the Texas Supreme Court has ruled, reversing a state court of appeals' decision that found an expert report is not required to address proximate cause.

In Columbia Valley Healthcare System, L.P. v. Zamarripa, Yolanda Iris Flores died of complications from pregnancy, and the guardian of her children, Maria Zamarripa, sued Drs. Ellis and Gonsoulin, Valley Regional, Bay Area, EMS, and others, claiming negligence in Flores' death.

Flores, pregnant in her third trimester, had been vomiting, had a fever, abdominal pain, and mild contractions when she was taken by ambulance to the emergency room of Columbia Valley Regional Medical Center, in Brownsville, Texas, an affiliate of Hospital Corporation of America.

Dr. Ellis, an obstetrician-gynecologist, ordered a battery of tests. An MRI showed placenta accreta, a high-risk pregnancy complication. Ellis ordered Flores transferred to the Corpus Christi Medical Center — Bay Area, also an affiliate of Hospital Corporation of America. Ellis order declared the transfer a "medical necessity upgrade in care," although not an emergency. Dr. Gonsoulin, an obstetrician-gynecologist in Corpus Christi at Bay Area, agreed to accept Flores.

During the 159 mile trip in the ambulance, Flores began to bleed. An EMS medic called Bay Area for permission to divert to another hospital for Flores to be evaluated, but Bay Area instructed the ambulance to continue on.

Before reaching Bay Area, Flores collapsed in cardiac arrest. At Bay Area, an emergency cesarian section and hysterectomy were immediately performed. Flores was initally stable, but died in the evening, as did her baby.

Zamarripa claimed, among other things, that Valley Regional's nurses were negligent in allowing Flores to be discharged and transfered by ground ambulance to a hospital 159 miles away.

Zamarripa retained two expert witnesses: a nurse with emergency room and labor and delivery experience, Grace Spears, and an an obstetrician/gynecologist, Dr. Frederick Harlass.

Spears's report stated that Valley Regional nurses breached the standard of care "by not advocating for" additional treatment and not advocating for Flores to remain at Valley Regional rather than being transfered by ground ambulance. Spears's report did not address how this caused Flores' death. Under the Texas Medical Liability Act, only physicians can be experts on causation.

Harlass' report stated:

due [to] the breaches of care by the [Valley Regional] personnel in permitting and facilitating the transfer, . . . Flores was in a location (ambulance on the highway) when and where timely emergent c-section and hysterectomy surgery was not available when she began to bleed from the abrupted placenta. Her bleeding caused her cardiovascular arrest due to lack of oxygen carried to the heart for sufficient pumping. This collapse led to ¹ and her death.

Valley Regional objected to the reports and moved to dismiss the case, arguing that the reports were insufficient to show how Valley Regional caused Flores' death: Ellis ordered Flores transferred, not the hospital.

The trial court overruled Valley Regional's objection and denied its motion to dismiss. Valley Regional appealed the interlocutory order. The court of appeals affirmed the trial court's order, and Valley Regional petitioned the Texas Supreme Court for review.

The Texas Supreme Court found that, as Harlass himself explained, it was Ellis who ordered Flores's transfer, not Valley Regional. Harlass' report did not explain how Valley Regional "had either the right or the means to persuade Dr. Ellis not to order the transfer or to stop it when he did."

Zamarripa's argued that the Act does not require such explanations in expert reports. The Supreme Court disagreed, finding that under the Act the expert report must address "the causal relationship" between a health care provider's failure to meet applicable standards of care and the claimed injury." Without factual explanations, the reports "are nothing more than the ipse dixit of the experts."

While the Supreme Court found that the court of appeals erred in its finding, it also found that under the Act such deficient reports must be granted one 30-day extension, if they can be cured. Statements in the expert reports indicating that Valley Regional permitted Flores' transfer might not be curable, but Spears' report suggests that "Valley Regional breached its standard of care in not providing Dr. Ellis information that would have persuaded him to change his mind," the Supreme Court said.

The court of appeals' judgment was reversed, and the case remanded to the trial court.