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Expert Report in Texas Health Care Liability Claim Against a Nurse

hospital roomIn a recent interlocutory appeal in Texas, a defendant nurse appealed a trial court’s denial of her motion to dismiss a plaintiff’s health care liability claims. These claims were filed against three defendants. The plaintiff had sought treatment from a clinic and its doctor for several reasons, including painful urination. Since the doctor wasn’t available, a nurse practitioner treated her and diagnosed her with a urinary tract infection, a yeast infection, and vaginosis, based on the results of a urinalysis. The nurse prescribed medication.

Five days later, the plaintiff came back with worsened symptoms. At a pelvic exam, the nurse allegedly told students who were observing that it was gonorrhea. In her petition, the plaintiff claimed she’d questioned the nurse about this diagnosis, since she’d been in a monogamous relationship for six months and hadn’t had sex with anybody else for years before that. The nurse allegedly told her that her boyfriend probably gave her gonorrhea.

The plaintiff’s petition claimed that the gonorrhea diagnosis was mistaken, and in the petition, she pled claims for failure to disclose risks, lack of consent, intentional infliction of emotional distress, breach of confidential communications, intrusion on seclusion, public disclosure of private facts, and negligent misrepresentation. She asked the court for damages to compensate for her mental anguish and physical pain.

Trying to comply with the statutory requirement that she get an expert report under section 74.351 of the Texas Civil Practice and Remedies Code, the plaintiff served a report by a doctor without a CV. The three defendants objected to the report, and the nurse moved for dismissal. The plaintiff belatedly served the CV. The three defendants made supplemental objections, and the doctor and clinic asked for dismissal. All were overruled or denied. The nurse filed an appeal.

The appellate court explained that under § 74.351(r)(6), it is necessary to get an expert report that provides a fair summary of the opinions as of the report date related to standards of care, how the care provided failed to meet the standard, and causation.

The defendant nurse argued that the doctor’s report didn’t establish his qualifications to testify on which standard of care applied to her as a nurse practitioner. Under section 74.402, an expert witness needs to possess three qualifications in order to give testimony about how a health care provider departed from a standard of health care.

The expert needs to be practicing health care in a field involving the same type of care provided by the defendant health care provider, know what the standards of care are for diagnosis, and be qualified due to training or experience to provide an expert opinion about accepted standards of health care. The court also has to consider whether the expert has a certification relevant to the claim and has actively practiced health care in providing services relevant to the claim.

In this case, the plaintiff’s expert had practiced for 18 years locally and knew the standards governing the practice of medicine. The plaintiff argued that these qualifications were greater than what was enough for expert qualification. The appellate court disagreed, explaining that in a prior case, an expert report was insufficient because the expert doctor didn’t disclose their familiarity with the standard of care for a nurse practitioner. Similarly, the doctor in this case didn’t state he had a familiarity with the standard of care to be applied to a nurse practitioner treating a patient with many symptoms, including painful urination or a diagnosis of a venereal disease. The defendant nurse’s first issue was sustained.

The defendant nurse also argued that the expert report was insufficient for failing to provide what the standard of care for her was. The appellate court noted that this is a necessary element when looking at whether an expert report is sufficient. The doctor had pasted into the report that the nurse had told students observing the exam that the plaintiff had gonorrhea, which was a violation of section 81.046 of the Texas Health and Safety Code. In this case, the doctor mentioned a standard of care linked to a statute. The trial court was required to review the report and determine its contents. The defendant’s issue on this point was overruled.

The defendant also argued that the report didn’t establish qualifications to testify on causation. Under 74.403 of the Texas Civil Practice and Remedies Code, someone can qualify as an expert on the issue of the causal relationship between a deviation from the accepted standard of care and the injury only if he is a doctor and otherwise qualified. The defendant nurse argued that the doctor in this case didn’t have qualifications to testify on psychological care and trauma from the reference to gonorrhea. The doctor didn’t state he had knowledge of telling patients about a diagnosis of a venereal disease and whether conveying this inappropriately could cause emotional distress. The third issue was sustained, as was the fourth, related to a breach of the standard of care and causation.

However, the appellate court overruled the defendant’s argument that the trial court had erred in denying the motion to dismiss. The appellate court reversed the trial court’s order and remanded the case to the lower court to decide whether to provide a 30-day extension to cure deficiencies in the expert report.

If you are injured or a loved one dies 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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