Med-Mal Expert Witness Reports to be Read Collectively: Tex. Sup. Ct.

Reading one expert witness report in isolation from others, a Texas court of appeals erred in interpreting the Texas Medical Liability Act, the state Supreme Court has found, reversing the appellate court's decision that the trial court had abused its discretion in finding that the expert reports together satisfied the Act.

The Texas Medical Liability Act requires plaintiffs in a medical liability claim cases “to serve each defendant with an “adequate” expert report or face dismissal of their claim.” Reports, written by qualified medical experts, must support the allegations, demonstrating that there was an applicable standard of care, the defendant failed to provide that standard, through which the defendant caused the alleged harm.

In this case, Miller v. JSC Lake Highlands Operations, LP, 16-0986 (Tex. Sup. 2017), the plaintiff, Karen Miller, filed health care liability claims against Lake Highlands assisted-living facility, Metrostat Diagnostic Services and Dr. Richard M. Williams, a Diagnostic Radiologist.

Miller's mother, Betty Ruth Hathcock, was a resident at Lake Highlands' facility "Village of Lake Highlands". Hathcock reported to the facility's staff that she had lost her dental bridge. Staff looked for the bridge but did not find it. That evening, Hathcock began coughing and showing signs of chest congestion. The Village's on-call physician, ordered a “stat” chest x-ray.

Metrostat, a mobile-imaging firm, x-rayed Hathcock and sent the images to Dr. Williams for review. The images revealed Hathcock's missing dental bridge in her trachea, but neither Metrostat's technician nor Dr. Williams noticed it or reported it.

Early the next morning, Village staff found Hathcock unresponsive. She was sent by ambulance to Doctors Hospital where emergency room physicians found the bridge lodged in her trachea. They removed the bridge, but Hathcock died soon after.

Miller filed four expert reports: each of three focused on the conduct of an individual defendant and the fourth report, by Dr. Ravi Patel, focused on the cause of Hathcock's death (Dr. Patel had treated Hathcock after she arrived at the emergency room). The trial court initially found the reports deficient, but allowed Miller to have them amended, which she did. The defendants moved to have the case dismissed, which the trial court denied.

The defendants then appealed, arguing that even when Miller's four expert reports were read together, they did not meet the standard of a good-faith effort because the medical-causation report by Dr. Patel “did not discuss the conduct of any particular defendant.”

The appellate court agreed with the defendants, finding Dr. Patel's report “independently insufficient because it "does not state that he reviewed any of the other expert reports in reaching his conclusions."” Due to this, the appellate court could not “determine whose conduct Dr. Patel's causation opinion implicates.”

The Texas Supreme Court disagreed, finding Dr. Patel's report on “brief, but substantive,” quoting Patel's conclusion:

“It is my medical opinion, based upon my care and treatment of Ms. Hathcock and in all reasonable probability, that the denture implant lodged in the throat/trachea area of her airway was the cause of the aspiration which produced the pulmonary edema and pneumothorax which, collectively, was a proximate cause of her death.”

The court of appeals refusal to read Dr. Patel's report alongside the others “contradicts the Act's explicit authorization of the use of multiple expert reports,” the state Supreme Court found, citing Texas Medical Liability Act §74.351.

The court elaborated that Dr. Patel “did not need to specifically name the person who caused the delay or otherwise outline the conduct of a particular defendant who caused that delay because the other reports supplied that information.”

The state Supreme Court reversed the court of appeals' judgment and remanded the case to the trial court.