February 13, 2021

The Texas Fourth Court of Appeals San Antonio, Texas (“Texas Appellate Court”) held in its Memoradum Opinion dated January 6, 2020, “appellants failed to establish that their expert witness was qualified under Rule 702 and therefore their expert cannot render an opinion on causation in this case pursuant to section 74.351(r)(5)(C).”

Texas Medical Malpractice Expert Report Disclosure Rules

“In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant’s original answer is filed, serve on that party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a).

“Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the later of the 21st day after the date the report is served or the 21st day after the date the defendant’s answer is filed, failing which all objections are waived.”

“Expert report’ means a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” § 74.351(r)(6).

“To qualify as an expert report under the statute, the report must contain the [statutorily-required] elements, and the expert report must be accompanied by a curriculum vitae of the expert authorizing the report.”

Texas Appellate Court Opinion

In the case it was deciding, the Texas Appellate Court stated, “the [plaintiff’s expert’s] report fails to demonstrate the witness is qualified to testify with expertise concerning the subject matter for which he was presented. Dr. Esterlein’s documents indicate that he has not practiced medicine or rendered health care services relevant to this case since 2010, and he is not board certified in any specialty of medicine. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(c)(2). His report fails to establish that he would have sufficient knowledge, skill, experience, training, or education to express an opinion regarding the cardiac, neurological, and physiological conditions he opines on in his causation conclusion.”

The Texas Appellate Court therefore held: “We conclude that the trial court did not abuse its discretion when it granted appellees’ motion to dismiss. We affirm the trial court’s order granting appellees’ motion to dismiss.”

Source Jacquez v. VHS San Antonio Partners, LLC, No. 04-20-00097-CV.

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