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Wrongful Death Arising Out of Texas Medical Malpractice

open casketThe Texas Court of Appeals recently considered a wrongful death claim allegedly arising out of medical malpractice. The plaintiff had filed a survival and wrongful death lawsuit against a hospital, claiming it was negligent and grossly negligent in treating the plaintiff in 2014. The hospital answered, denying all of the allegations included in the plaintiff’s lawsuit.

The plaintiff served an expert report from a nurse on the hospital after that. The hospital moved to dismiss the nurse’s report on the ground that she wasn’t qualified to offer opinions about causation. The plaintiff responded by asking for 30 days to fix the deficiencies in the report. The court sustained the hospital’s objections and granted a 30-day extension to fix the report defects. Trying to fix the deficiencies, the plaintiff served the report of a doctor on the hospital.

The hospital sought to dismiss and objected to the expert reports. It argued that the doctor didn’t explain the necessary ways in which there had been a breach in the professional standard of care and how that caused the injury. It also argued that the doctor’s report simply asserted that the staff had allowed the tracheostomy tube to get dislodged, and there was no detail to support this claim.

The trial court denied the hospital’s motion to dismiss, and it appealed. The appellate court explained that when suing for medical malpractice, a plaintiff needs to file an expert report that includes opinions about the standard of care, how it was breached, and causation. If a plaintiff files the appropriate expert report, and there is a motion to dismiss that argues that it is insufficient, the motion should be granted only if the report isn’t a good faith effort to comply with the law.

The report is supposed to explain the expert’s conclusions, linking them to the facts. A report that simply restates the expert’s conclusions about the standard of care, breach, and causation is inadequate. Reports that leave out these elements are similarly deficient. A report can be informal in that it need not meet the same standards as evidence must in connection with a summary judgment motion. The report doesn’t have to address the liability and standards of all of the doctors.

In this case, the hospital argued that the report was too conclusory with regard to whether the hospital’s conduct caused the wrongful death of the decedent. The doctor gave a certain amount of information about the claims and explained that the tracheostomy tube had been removed twice during the 48 hours before her death. The standard of care was to put the decedent on a continuous pulse oximeter that would indicate oxygen decreases. She pulled out her tube twice while not restrained. The expert concluded that the staff’s actions that allowed the tube to get dislodged directly caused the woman’s death.

The appellate court explained that in this case, there was a gap in the expert report regarding what the breach of the standard of care was that caused the death. Therefore, it found that it was an abuse of discretion for the lower court to deny the motion to dismiss.

If a loved one dies as a result of medical malpractice, 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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