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Extension to Fix Expert Report Deficiencies in Texas

Legal News GavelIn a Texas medical malpractice case, the lower court dismissed the plaintiffs’ claim without giving them a 30-day extension to fix deficiencies in their expert reports. The case arose when a man was admitted to a medical center and was diagnosed with the narrowing of a carotid artery and the occlusion of a coronary artery. He had coronary surgery. After the surgery, he suffered from a lack of oxygen to the brain. The family decided to take him off ventilator support, and he died the next day.

His wife sued the medical center, a health system foundation, and a doctor under the wrongful death and survival statutes. She claimed medical negligence and gross negligence against the defendant, as well as respondeat superior against the entities.

The plaintiff claimed the entities were liable because the nurses didn’t institute several interventions to fix the critically low oxygen saturations and that they should be liable under the doctrine of respondeat superior because their negligence had caused the man’s death. They served two expert reports on time under Texas Civil Practices & Remedies Code section 74.351.

The entities objected to the expert reports. They claimed that the original report didn’t meet minimum standards, since it didn’t address in any way how the claim against the entities was meritorious or how their actions caused his injuries. They argued that the report should be considered no report. The plaintiffs asked for a 30-day extension to fix the reports. They argued that even if their first report didn’t address causation as to the entities and staff, a missing element didn’t cause two reports to become zero reports. Instead, it prompted the court to ask if the deficiencies in the report were curable.

The plaintiffs attached an amended report to their brief about the 30-day extension. They argued it addressed causation and showed that the deficiency in the prior report could be cured. The entities objected, arguing that the expert hadn’t showed he was qualified in the amended report. The court determined that the plaintiff’s documents didn’t meet the requirements of an expert report, and in particular, they didn’t address causation. The plaintiff’s claims were dismissed with prejudice.

The plaintiffs appealed the grant of the motion to dismiss. The appellate court explained that Section 74.351 required a plaintiff to serve the defendant with an expert report within 120 days of the defendant filing its original answer. The report had to summarize opinions about which standards of care were applicable, how the care provided failed to meet the standards, and causation.

If an expert report wasn’t properly served in that period due to a deficiency, the court could grant a 30-day extension to cure the deficiency. In this case, the entity defendants argued that neither of the original expert reports had an opinion about causation. The lower court dismissed the claims without providing a 30-day extension. The entities argued that when an expert report doesn’t talk about causation, it wasn’t eligible for an extension. The appellate court disagreed. It had previously held that extensions wouldn’t be provided if there was no expert report. However, the standards for providing an extension when there was a deficient expert report were minimal. Plaintiffs are supposed to be given a chance to fix a deficiency if it’s possible to do so.

The appellate court reversed the lower court’s order.

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