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Causation and Expert Reports in a Texas Medical Malpractice Lawsuit

operating roomIn JSC Lake Highlands Operations, LP v. Miller, a Texas appellate court considered causation in a wrongful death case. The case arose when a woman was discharged from the hospital and admitted to JSC (the defendant’s facility) for rehabilitation. The following month, she received a phone call from her daughter, who thought she sounded strange. That evening, she told the staff that her dental bridge was missing, but the staff couldn’t find it.

The staff called the woman’s other daughter and told her that her mother was upset about losing the bridge. The daughter sent her husband to look for the bridge at the facility. He couldn’t locate it. The daughter spoke to her mother that evening and thought that her voice sounded raspy. The woman started coughing and showing chest congestion shortly thereafter. A doctor ordered a chest x-ray and Robitussin. The staff didn’t tell him her bridge was missing.

The chest x-ray said little more than that the heart was normal in size and configuration. The doctor was told of the results and ordered medication. The woman was found unresponsive in her room early in the morning. She was brought to the hospital but was unresponsive with seizure-like movements.

When the ER doctors tried to intubate her, they found that the missing bridge was stuck in her throat. It was removed, and she was transferred to ICU. She was given aggressive treatment and support. She didn’t improve, and her family asked that life support be removed. Her death certificate listed as causes of death aspiration, pulmonary edema, and pneumothorax.

Her family sued JSC and others under the Texas Medical Liability Act. They alleged a breach of the standard of care that proximately caused the death. Specifically, they claimed the delay in finding the bridge inside the woman’s throat was the cause of her death. The plaintiff filed four expert reports to support her claims.

The defendants objected and moved to dismiss the lawsuit for a failure to serve adequate reports, as required by section 74.351 of the Texas Civil Practice and Remedies Code. The trial court granted the plaintiff 30 days to cure the inadequate reports, which she tried to do. The defendants moved again to dismiss. The trial court denied the motions, and the defendants appealed.

The appellate court reviewed the decision for an abuse of discretion. Trial courts must grant motions challenging an expert report as deficient only if it seems that the report isn’t an objective, good-faith effort to comply with the expert report requirement. The expert report is supposed to summarize the standard of care and the way in which the physician’s care didn’t meet that standard, as well as the causal relationship between the failure to meet the standard and the injury.

An expert report meets the causation requirement when a report explains why the expert is drawing certain conclusions and links them to the facts. Causation can’t be inferred.

The appellate court examined each of the expert reports. With the first, it explained that an expert could show causation by describing the events, starting with the negligence and ending with the injury. The report didn’t identify any of the allegedly responsible defendants, and it was therefore deficient in causation. With regard to the next report it examined, it found that the report couldn’t establish causation because the expert wasn’t a doctor and therefore wasn’t qualified to provide an opinion about causation. With regard to the third report, it found that the opinion stopped short of stating that a doctor’s conduct contributed to the decedent’s death, since it merely said that the failure to timely remove a foreign object in the throat “can lead to aspiration.” The fourth report was similarly conclusory, finding that if information had been timely reported, the decedent’s care would have probably been changed, and she likely would have gone to the hospital more quickly. The appellate court found she failed to explain the facts that linked the delay in identifying the bridge in the throat to the woman’s death.

The appellate court reversed the lower court’s ruling and sent the case back to be dismissed with prejudice.

If a loved one dies as a result of medical negligence, the San Antonio wrongful death 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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