The Texas Medical Liability Act (TMLA) requires a claimant to serve an expert report early in the proceedings on each party against whom a health care liability claim is asserted. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West Supp. 2021). The Texas Supreme Court has explained that “eliciting an expert’s opinions early in the litigation [is] an obvious place to start in attempting to reduce frivolous lawsuits.” The purpose of evaluating expert reports is to deter frivolous claims, not to dispose of claims regardless of their merits. A valid expert report must fairly summarize the applicable standard of care; explain how a physician or health care provider failed to meet that standard; and establish a causal relationship between the failure and the harm alleged. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).

A report need not cover every alleged liability theory to make the defendant aware of the conduct at issue, nor does it require litigation ready evidence. The report can be informal in that the information in the report does not have to meet the same requirements as the evidence offered in a summary judgment proceeding or at trial. For the particular liability theory addressed, the report must sufficiently describe the defendant’s alleged conduct. Such a report both informs a defendant of the behavior in question and allows the trial court to determine if the allegations have merit. If the trial court decides that a liability theory is supported, then the claim is not frivolous, and the suit may proceed. If a health care liability claim contains at least one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous.

In a Texas medical malpractice case the Court of Appeals Twelfth District of Texas Tyler, Texas (“Texas Appellate Court”) decided by Memorandum Opinion on December 21, 2021, the Texas Appellate Court stated: “a review of the entire report on causation discloses that Dr. Keyrouz did more than merely opine that Kalka might have had the possibility of a better outcome, and his report required no inference to establish the causal connection … Dr. Keyrouz explained the nature of strokes, the appropriate treatment protocol under the circumstances, and how the treatment would have prevented or resulted in a less severe injury caused by Kalka’s stroke. That is, Dr. Keyrouz explained that when Kalka presented to the emergency room, she exhibited symptoms consistent with a stroke, and the standard of care required appropriate examination and documentation, including the patient’s last known well time. Dr. Keyrouz explained that this information would have informed either Dr. Wattigny or other subsequent treating physicians such as Dr. Thomas of the appropriate treatment—IV rt-PA. Dr. Keyrouz opined that Dr. Wattigny failed to comply with the standard of care, and these actions foreclosed consideration of IV rt-PA treatment at a time when it would have been effective at restoring blood flow and oxygen delivery to the affected brain tissues. Dr. Keyrouz further explained that in reasonable probability, timely treatment would have alleviated or made less severe the damage suffered from Kalka’s stroke. Specifically, he stated the treatment “will, in reasonable probability, restore blood flow and oxygen delivery to brain tissue sufficient to allow a patient a full or near full recovery, with minimal lasting effects from the stroke[; and that] if a patient does not receive such treatment and in a timely manner, brain tissues will die from being starved of oxygen.” The adequacy of Dr. Keyrouz’s report is not dependent on its use of any magic words … Dr. Keyrouz explained, to a reasonable degree of medical probability, a chain of events beginning with Dr. Wattigny’s alleged negligence that was a foreseeable substantial factor resulting in Kalka’s injuries … Furthermore, the fact that Dr. Keyrouz’s report does not satisfy the standard of proof for causation at trial does not render it inadequate during this stage of the litigation. The ultimate evidentiary value of the opinions proffered by Dr. Keyrouz—whether there actually is a causal connection, rather than simply a stated one—is a “matter to be determined at summary judgment and beyond.””

Therefore, the Texas Appellate Court held: “the trial court’s order is reversed and this cause remanded for further proceedings consistent with this opinion.”

Source Kalka v. Wattigny, M.D., No. 12-21-00048-CV.

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