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Plaintiff Uses Surgeon’s Expert Reports in Texas Medical Malpractice Case

surgeon-3-1562055In Christus v. Baird, a hospital appealed from a Texas trial court’s order related to expert reports in a medical malpractice case. The case arose when the plaintiff had surgery to remove a part of her thyroid gland. The surgeon didn’t remove the correct lobe but instead removed the thymus gland. She had another surgery at a different hospital to remove the left lobe.

The plaintiff sued the surgeon and his professional association, alleging that the surgeon was negligent in not removing her thyroid gland and instead removing her thymus. She served both the surgeon and association with an expert report.

The surgeon moved to designate the hospital as a responsible third party and denied his negligence. He claimed the hospital was responsible for the woman undergoing a subsequent surgery because the hospital’s cryostat wasn’t available during the surgery, there was no backup, and the hospital hadn’t told him a cryostat wouldn’t be available under after he’d started operating.

The woman amended her petition to include the hospital as a defendant and allege its negligence. However, her only expert reports against the hospital were reports the doctor had previously produced in designating his own experts.

The hospital objected, arguing that if the plaintiff was permitted to use the surgeon’s expert reports, the reports would be inadmissible under section 74.351(k) of the Texas Medical Liability Act. Under that section, expert reports served initially to show a party’s position has merit aren’t admissible in evidence and can’t be referred to by any party during the litigation for any purpose. The hospital argued that a claimant couldn’t use the initial expert report of another party by designating the expert as her own.

The trial court overruled the hospital’s objections. It found that the code didn’t restrict a proper use of the expert’s opinion. The hospital filed a motion to reconsider and tried again to have the plaintiff’s claims dismissed on the grounds that her claims against the surgeon and the hospital were inconsistent. The plaintiff responded that she was allowed to assert alternative claims for relief. The trial court denied the hospital’s motion. The hospital appealed.

On appeal, the hospital argued that the trial court abused its discretion by deciding that the plaintiff’s expert reports were sufficient, since they included contradictory opinions about the surgeon’s negligence. The appellate court explained that a trial court is not supposed to grant a motion that challenges the adequacy of an expert report unless the report seems not to represent a good faith effort to comply with procedural requirements. A compliant expert report is supposed to:  (1) summarize the standard of care; (2) show how the defendant failed to meet the standard; and (3) establish causation.

The appellate court found that in the contested reports, the experts met these elements and thereby informed the hospital of which aspects of their conduct the plaintiff was alleging were negligent.

The hospital also argued that the lower court had abused its discretion by permitting the plaintiff to have unilateral control over reports designated as evidence by the surgeon. It expressed concern that only the plaintiff would control the expert’s reports in question. The court found that this issue wasn’t ready for review.

If you are injured due to medical malpractice, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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