May 23, 2022

The Texas Fourteenth Court of Appeals stated in its Memorandum Opinion filed on March 15, 2022 in a Texas medical malpractice case where the defendants challenged the sufficiency of the plaintiff’s experts’ reports: “Appellee is permitted to rely on more than one expert report in meeting the requirements of the statute. Appellants challenge only Dr. Rankin’s expert report but do not discuss how or why the two reports when considered together are insufficient. Based on the facts and circumstances herein, we cannot conclude that the trial court abused its discretion in denying appellants’ challenges to appellee’s expert reports and denying their motions to dismiss.”

Underlying Facts

On July 14, 2017, appellee sought treatment for a foot injury at Bayshore Medical Center. She had an existing fracture in her foot, apparent cellulitis, and compromised circulation. The following day, Dr. Mullins ordered an arterial doppler of appellee’s leg. On July 16, Dr. Mullins saw appellee again and noted that the arterial doppler scan had not been done. The scan was performed later that same evening. Two days later, on July 18, Dr. Mullins performed an angiogram, placed an order to transfer appellee to another hospital, and recommended a surgical evaluation. The next day, July 19, Dr. Mullins examined appellee again and found her right foot was cyanotic with purpura and necrosis. Also on July 19, Dr. Letsou recommended a combination endovascular and open surgical approach for revascularization, and he initiated a transfer to another hospital. Appellee was not transferred until two days later, July 21, just before midnight. Appellee underwent a right common femoral thromboendoarterectomy with saphenous vein patch angioplasty and right below the knee amputation.

Appellee filed a Texas medical malpractice lawsuit against appellants, alleging health care liability claims of negligence. Appellee argued that both doctors were negligent in failing to ensure that she was transferred to another hospital within a reasonable time. Because her claims against appellants are health care liability claims, appellee filed and served two expert reports upon appellants, the first from Dr. Rankin and the second from Dr. Teng. Appellants objected to Dr. Rankin’s expert report and filed motions to dismiss. Appellants did not object to Dr. Teng’s report because “it contained no criticisms” of appellants’ care of appellee. The trial court denied both motions.

The Texas Appellate Court stated that if the report or reports do not represent an objective good faith effort to provide a fair summary of the applicable standard of care, the breach of that standard, and how that caused the harm, then the trial court must sustain the challenge to the adequacy of the expert’s report. The report must provide enough information to (1) inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude that the claims have merit. A trial court may read several reports in concert in determining whether a plaintiff has made a good-faith effort to comply with the Act’s requirements.

The Texas Appellate Court further stated: “Dr. Rankin does not opine that appellants should have diagnosed appellee’s condition sooner or treated her in some way that they did not. Instead, he opines that once appellants concluded that appellee needed to be transferred to a higher level of care, appellants then had a duty to ensure their transfer orders were followed in a timely manner, or to contact other hospitals … Dr. Teng opines that the standard of care for physicians in treating patients with symptoms like appellee includes “the responsibility to ensure patients are properly monitored, assessed, have procedures performed timely, and be transferred to another hospital timely” … Dr. Rankin works in the same setting as appellants, in a hospital, caring for patients like appellee. Dr. Rankin specifically details that he works with a team of health care providers, including specialists like appellants, and is familiar with the standard of care in treating patients like appellee.”

“Dr. Rankin’s report states specifically that in treating a condition like appellee’s, time is of the essence. He opines that appellants would have seen appellee during their daily rounds, known that their transfer order had not been implemented or followed, and should have followed-up by finding other placement for appellee. This opinion is not vague or conclusory; instead, it tells appellants the specific actions that should have been taken: contacting other hospitals and attempting to transfer appellee to another hospital that could treat her. Similarly, Dr. Teng also opines that even when considering the reason for delay, that Memorial Hermann did not have any available beds, this is “not an excuse in patient with limb ischemia. In this situation alternative hospitals should have been contacted” … both Dr. Teng and Dr. Rankin opine that physicians, including specialists, owe the same standard of care to their patients in a hospital setting when ordering a transfer of the patient … Taken together, the expert reports provide sufficient “how” and “why” of the causal relationship between the breaches of the applicable standards of care and the harm.”

Source Letsou v. Wright, No. 14-19-01019-CV.

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