An expert report demonstrates a good faith effort, and is sufficient under the statute, when it (1) informs the defendant of the specific conduct called into question and (2) provides a basis for the trial court to conclude the claims have merit. This adequacy inquiry is confined to the four corners of the report, taken as a whole, and under an abuse-of-discretion standard, close calls must go to the trial court.
In the case the Supreme Court of Texas was deciding, baby E.D. was delivered in grave condition and was later diagnosed with hypoxic ischemic encephalopathy, cerebral palsy, and quadriplegia: “the plaintiff’s expert’s report “fairly summarize[s] Dr. Balducci’s opinion as to how and why Dr. Jones’s alleged failure to secure accurate information regarding E.D.’s heart rate foreseeably led to the delay in recognizing the need to deliver E.D. much earlier than 00:20 on February 8 … construed as a whole, [the report] adequately (1) describes the standard of care as effective communication and close monitoring of the fetal heart rate; (2) identifies Dr. Jones’s breach as failure to timely and accurately evaluate the fetal heart-tracing markers, either personally or by making appropriate inquiries of the attending nurse; and (3) explains that the failure to do so resulted in Dr. Jones ordering a STAT delivery too late to avoid injury.”
The Supreme Court of Texas held: “In this medical-malpractice case, the trial court held that a timely served expert report was adequate as to breach and causation in a suit alleging that negligent perinatal care during labor and delivery caused an infant’s brain damage and other serious health conditions. The court of appeals reversed and dismissed the suit against the treating physician, but we hold that the trial court did not abuse its discretion in concluding that the expert report satisfies the “fair summary” standard. Accordingly, we reverse the court of appeals’ judgment and remand to the trial court for further proceedings.”
Source E.D. v. Texas Health Care, P.L.L.C., No. 20-0657.
If you or your baby suffered serious harm as a result of medical negligence 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 birth injury medical malpractice claim for you and represent you and your baby in a birth injury medical malpractice case, if appropriate.
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