• Nicole Linko

EXPERT REPORTS IN HEALTHCARE LIABILITY CASES

The requirements for expert reports in healthcare liability cases is much different than in other cases. Only in healthcare liability cases is there a requirement that a victim deliver an expert report to the parties that have been sued within 120 days of the filing of a case. The purpose of such a requirement is to establish at the beginning of the case that the case has merit. A victim cannot file a case, conduct discovery (interrogatories, request for production, and/or depositions) until the report is provided. The requirement of the expert report is to have an early showing that the case has merit before expensive and time consuming discovery can take place. I personally believe the requirement of the expert report is a good thing. It stops unmeritorious cases at the outset from proceeding. It stops lawyers from filing cases that do not have merit. My practice is to have the required expert reports in hand before a healthcare liability case is even filed.


There are other safeguards to protect parties who get sued when there is no basis in fact or law for the case. The Civil Practices & Remedies Code, chapter 10, provides for sanctions to be awarded against lawyers and parties for filing a frivolous case against any party.


Healthcare providers have been given special and added protection against frivolous lawsuits by the requirement for expert reports. What is more, the requirements for the expert reports are very technical, and there are many traps for the lawyers who do not thoroughly understand the requirements. There are many appellate decisions that have illustrated the difficulty lawyers have encountered in complying with the requirements. Many cases have been dismissed with prejudice because of non-compliance with the requirements for the expert reports. The requirements appear straightforward and simple. However, in practice, it is difficult for me to understand how or why so many lawyers pursuing healthcare liability claims fail to get it right with their expert reports. Every time that I read an appellate court decision that dismisses a case with prejudice, I can readily see the deficiency in the report, and cannot understand why lawyers filing such deficient reports do not seem to be able to get it right.


I was prompted to write this blog after reading an excellent recitation of the requirements for such expert reports, as stated in Estroque v. Schafer, Civ.App. – Fort Worth, Sept. 17, 2009. The requirements for an expert report are governed by Tex. Civ. Prac. & Rem. Code Ann. Sec. 74.351.


A healthcare liability claim is any claim or lawsuit for damages against a hospital, physician, dentist, or any of person or entity that is providing healthcare services, arising out of the provision of healthcare services.


Pursuing a healthcare liability claim is much more difficult than any other type of claim on account of the requirements for expert reports being served within 120 days of filing of a case. There are numerous hurdles to clear and traps for the unwary. A healthcare liability case can be dismissed with prejudice on account of form technicalities with expert reports before any discovery is permitted. There hundreds of appellate court opinions dismissing the case with prejudice based solely on a deficient expert report.

Expert Report Requirements in Healthcare Liability Cases

A health care liability claimant must serve an expert report on each defendant no later than the 120th day after the claim is filed. The each defendant requirement means the report must name each defendant and state as to each all the requirements regarding standard of care, breach of standard of care, and causation. If the claimant does not serve (deliver to the healthcare provider or its attorney) an expert report on a defendant physician or health care provider within the 120-day period, then on the motion of the affected physician or health care provider, the trial court must dismiss the claim with prejudice.


Even is the report is served time, a defendant healthcare provider may challenge the adequacy of a report by filing a motion to dismiss. The trial court must grant the motion to dismiss if it finds, after a hearing, that "the report does not represent an objective good faith effort to comply with the definition of an expert report." The statutory requirement is that the expert report must provide a fair summary of the expert's opinions as to the applicable standard 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." That seems straightforward and simple. All of the appellate decisions dismissing cases on account that the report fails to comply with that requirement is astonishing to me to see how many lawyers do not get it.


The appellate cases continue to tell us that to constitute a good faith effort, the report must discuss the standards of care, breach, and causation with sufficient specificity (1) to inform the defendant of the conduct the plaintiff has called into question and (2) to provide the trial court with a basis to conclude that the claims have merit. A report does not fulfill this requirement if it merely states the expert's conclusions or if it omits any of the statutory requirements. When determining the adequacy of a report, the only information relevant to the inquiry is the information contained within the four corners of the report itself.


If a timely served expert report, intended by a claimant to be an expert report, is determined by the trial court to be deficient in complying with statutory requirements, the trial court may grant one thirty-day extension to the claimant in order to cure the deficiency. If the court determines that the report is adequate, the defendant may challenge that ruling by interlocutory appeal. An appeals court may find an expert report deficient and remand the case to the trial court to decide whether to grant a thirty-day extension to cure the deficiency.


A trial court's ruling concerning an expert report is reviewable under the abuse of discretion standard. To determine whether a trial court abused its discretion, an appellate court must decide whether the trial court acted without reference to any guiding rules or principles; in other words, the appellate court must decide whether the act was arbitrary or unreasonable. An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. It is extremely difficult to convince an appellate court that a trial court abused its discretion.


The first hurdle or trap for the claimant is to convince the trial court that the expert is qualified to give opinion testimony concerning the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care only if the person (1) is a physician and (2) is otherwise qualified to render opinions on the causal relationship. The expert report on the issues of standard of care, breach of standard of care, and/or causation must state that and demonstrate how such expert has "knowledge, skill, experience, training, or education" regarding the specific issue that the claimant is alleging constitute malpractice and causation of injury. The expert’s qualifications must appear within the four corners of the expert report itself. The report must set out very clearly how the expert is qualified on the very subject and type of healthcare in question. The report must state how the expert has knowledge, skill, experience, training, or education regarding the specific issue regarding the standard of care issues and causation issues that the claimant is alleging form the basis of the claim in question.


The expert report must provide a fair summary of the causal relationship between the failure of a health care provider to meet the standards of care and the injury, harm, or damages claimed. An expert report cannot merely state the expert's conclusions about the statutory elements; the expert must explain the basis of his statements made regarding causation and link his conclusions to the facts. An expert report does not sufficiently address the causation element if it merely provides insight' about the plaintiff's claims. A causal relationship is established by proof that the negligent act or omission was a substantial factor in bringing about the harm and that absent said act or omission, the harm would not have occurred. The expert report must explain how the alleged breach caused the harm or injury. However, to avoid dismissal, a plaintiff need not present all the evidence necessary to litigate the merits of his case.


The expert report must explain the basis of the opinions as to causation; and cannot leave gaps by not explaining how or why the healthcare providers conduct (acts and/or omissions) allowed or caused the complained of injury to come about. The report cannot just say that the acts or omission that amounted to negligence directly caused the injury complained of. The report must link alleged negligent activity to the specific injuries in the case. The report must explain how the injuries would not have occurred if the negligent healthcare provider had done what was required by the standard of care.


Sample Expert Report


My name is xxxxxxxxx, M.D. My professional address is xxxxxxxx.. I am a board certified xxxxxxxx in active practice of xxxxxxxx in xxxxxx. I am currently licensed to practice medicine in the State of xxxxx. (set forth all a full and thorough discussion of training, experience, and specific areas of practice). Attached hereto is a true and correct copy of my current curriculum vitae, which states my education, training, experience, licensure, certification, memberships, and biblilography.


This report is being prepared by me at the request of Attorney Name, to meet the requirements of the Texas Civil Practices & Remedies Code, section 74.351. I understand that pursuant to the Texas Civil Practices & Remedies Code, section 74.351(k), that this report is not admissible in evidence by any party; that it shall not be used in a deposition, trial or other proceeding; and that it shall not be referred to by any party during the course of the action for any purpose.


I have examined the following materials:


(list all materials reviewed)


The heatlhcare services in question, which I have examined, and which the findings and opinions in this report address are: (state the nature of the procedure or healthcare services in question.) (Make a detailed statement of how the expert’s training, experience, and practice qualifies him or her to comment on the standard of care applicable to the specific healthcare services that are in question, and about which the expert renders standard of care opinions about the defendant healthcare providers. If the expert has performed the idential procedure or managed the identical condition, then state the expert’s experience, including teaching others to do it).


All of the opinions that I express in this report are based upon reasonable medical probability, my education, training, and experience, and upon the materials that I have examined.


The identity of the healthcare provider(s) whose conduct I am assessing are as follows: (list the names, or a generic description of the person(s) by reference to records entries).


SUMMARY OF PERTINENT FACTS


(State succinctly the pertinent facts that are material to opinions. Such facts can be referenced to page number in attached records)


KNOWLEDGE OF ACCEPTED STANDARDS OF CARE


I have knowledge of the accepted standards of care that are applicable to xxxxxxxxx, M.D. (a xxxxxxx) regarding the diagnosis, care and treatment of the illness, injury, or condition involved in this case, as reflected by the above listed records that I examined. I have knowledge of acceptable standards of care for a xxxxxxxxxx in the performance of the procedures in question, that are described above and that are involved in this case. The treatment in question is the xxxxxxxxxxxxxxxxx.


You have asked me to use the Texas legal definitions of negligence and proximate cause in formulating my opinions, and you have advised me that the Texas legal definition of negligence for a physician such as xxxxxxxxxx, M.D. a xxxxxxxxxx, in providing the medical treatment in question to xxxxxxxxx means, which means “the failure to use ordinary care; that is, failure to do that which a general surgeon of ordinary prudence would have done under the same or similar circumstances, or doing that which a xxxxxxxx of ordinary prudence would not have done under the same or similar circumstances” and that ordinary care, when used with respect to the conduct of xxxxxxxx, M.D. means “that degree of care that a xxxxxxx of ordinary prudence would use under the same or similar circumstances.” You have further advised me that the Texas legal definition of proximate cause is with reference to the conduct of xxxxxxx, M.D. means “that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a general surgeon using ordinary care would have foreseen that the event, or some similar event, might reasonably result there from.” I believe that standard of care is synonymous with the degree of care that a general surgeon of ordinary prudence would use under the same or similar circumstances.


I equate negligence in this case to conduct that is beneath accepted standards of care. Whenever in this report I express an opinion that conduct is beneath accepted standards of care, I am also saying that such conduct amounts to negligence.


STANDARD OF CARE OPINIONS AS TO xxxxxxxxxxxx, M.D.


Accepted standards of care that were applicable to xxxxxxxxxxx, M.D. in providing the medical care that xxxx(he/she) provided to xxxxxxxx on xxxxxx(date), required the following:



(State/list what the standard of care required that was not done)



I am of the opinion that the conduct of xxxxxx, M.D. in providing the medical care that (he/she) provided to xxxxxxxx on xxxxxxxx was beneath accepted standards of care in the following regards:



(State/list what healthcare provider failed to do that was beneath accepted standards of care)


(If the report is critical of more than one healthcare provider, the report must specifically name each provider and state all of the above as to each.)



OPINIONS ON CAUSATION


(State what harm or injry the patient sustained as a result of the above listed conduct that was beneath accepted standards of care)


(State in detail how the breaches in the standard of care caused the harm to the patient -Take great care in stating in detail the causal link between the breaches and the harm. Explain the obvious in very simple terms. Explain the anatomy. Explain each sequential step in the causal chain of events from the negligent conduct to the ultimate injury. Explain in detail that the injury would not have occurred had the standard of care been met. Explain how meeting the standard of care would have prevented the complained of injury)


(If the medical literature on the subject supports the expert’s opinions, then cite the specific literature that supports the expert’s opinions.)


All of the above stated opinions are based upon a reasonable degree of medical probability. I reserve the right to make any changes or amendments to the above stated opinions, should additional facts become known to me.

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