The plaintiff alleged in her Texas medical malpractice case that a cardiac pacemaker was unnecessarily implanted in her: “When she returned for her follow-up appointment one year later, the device showed virtually no usage. At that time, McQuillen sought second and third opinions from two other physicians who were unaffiliated with Dr. Borno. Both of the new physicians determined that McQuillen did not have a condition that required a pacemaker.”
The Texas Appellate Court stated: “The record shows that during a hearing on the objections to Dr. Su’s initial expert report, McQuillen admitted that the first expert report was deficient as to Lubbock Heart Hospital. The record also shows that, at the conclusion of that hearing, the trial court granted McQuillen a thirty-day extension of time to cure the deficiencies in the expert report of Dr. Su. The clerk’s record reflects an order dated March 22, 2021, wherein the trial court finds the original expert report to be deficient. That same order grants McQuillen a thirty-day “grace period” to file an amended section 74.351 expert report. McQuillen filed her amended report within the time frame allowed by statute and the order of the court. Thus, the amended expert report, filed April 16, 2021, became the operative report for all purposes. Because Lubbock Heart Hospital did not file any objections to the amended report, the trial court abused its discretion in failing to find that it waived any objections to Dr. Su’s amended expert report. McQuillen’s first issue is sustained.”
The Texas Appellate Court further stated: “Generally, when a plaintiff brings health care liability claims against more than one defendant physician or health care provider, the expert report must set forth the standard of care and breach of the standard of care as to each defendant and explain the causal relationship between each defendant’s individual acts or omissions and the claimed injury … But when a plaintiff brings a health care liability claim based on a vicarious liability theory against a defendant health care provider, an expert report that adequately implicates the actions of that party’s agent or employee is sufficient as to the defendant health care provider … an expert report is not even required to name a hospital expressly or identify a standard of care breached by the hospital if the theory of liability against the hospital is based on the actions of the hospital’s physicians … Having examined that report, we find the it provides a fair summary of the expert’s opinions, as of the date of the report, regarding the standards of care applicable to a physician in the same or similar situation as Dr. Borno, the manner by which the care rendered to McQuillen failed to meet those standards, and the causal relationship between that failure and the injury, harm, or damages being asserted against Lubbock Heart Hospital. Based on those findings, we conclude the trial court abused its discretion in granting Lubbock Heart Hospital’s motion to dismiss and we sustain issue two.”
Source McQuillen v. Lubbock Heart Hospital, LLC, No. 07-21-00125-CV.
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