In Texas, a party who brings a health care liability claim shall “not later than the 120th day after each defendant’s original answer is filed, serve on that party or the party’s attorney one or more expert reports . . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The claimant must also serve the curriculum vitae of each expert who provided a report. Each defendant must object to the sufficiency of the report within twenty-one days of receiving the report or twenty-one days of the filing of the defendant’s answer.
Failure to timely serve the expert report shall result in the trial court dismissing the suit with prejudice. § 74.351(b)(2). Conversely, failure to timely object results in a waiver of any objections. § 74.351(a) The court may grant one thirty-day extension to cure a report that is found to be deficient. § 74.351(c). In general, trial courts should err on the side of granting claimants’ extensions.
The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits. The report must represent an objective good faith effort to comply with the definition of an expert report. § 74.351(l). To meet the requirements of a report, it must represent a fair summary of the expert’s opinions of (1) the standard of care; (2) the manner in which the care rendered failed to meet the standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed. At a minimum, the report must inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude that the claims have merit. A report does not constitute a good faith effort if it omits any of the statutory requirements. However, the claimant is not required to present evidence in the report as if they were actually litigating the merits.
In a Texas medical malpractice case decided on February 11, 2021 by the Court of Appeals Thirteenth District of Texas Corpus Christi – Edinburg (“Texas Appellate Court”) in which a minor suffered brain damage during brain surgery when a retractor used during surgery had migrated and went into her brainstem, causing paralysis to the left side of her body and weakness on the right side, the Texas Appellate Court held that the plaintiff’s experts’ reports “represent an objective good faith effort to comply” with the requirements of an expert report. The reports “inform the defendant of the specific conduct the plaintiff has called into question” and “provide a basis for the trial court to conclude that the claims have merit.” The reports represent a “fair summary of the expert’s opinions” on (1) the standard of care (preventing contact to and migration of the retractor); (2) the manner in which the care rendered failed to meet the standards (Dr. Burke, the surgical tech, or surgical equipment under the control of Dr. Burke or the surgical tech contacted the retractor); and (3) the causal relationship between that failure and the injury, harm, or damages claimed (the contact to the retractor caused it to migrate into Banda’s brainstem, causing “significant neurological impairment”). “We conclude that the trial court did not abuse its discretion when it overruled DHR’s objections to the expert reports and denying DHR’s motion to dismiss.”
Source Doctors Hospital at Renaissance, Ltd. v. Lugo, No. 13-20-00406-CV.
If you or a loved one have suffered serious harm as a result of surgery in Texas or in another U.S. state, you should promptly find a Texas medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your surgical medical malpractice claim for you and represent you or your loved one in a surgery medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.