In Mangin v. Wendt, the court considered a medical malpractice appeal. The trial court had ruled that the plaintiff’s medical expert reports that were filed in connection with the suit were sufficient, and the case could go forward. The doctors appealed.
The decedent was admitted to the hospital with chest pain. A cardiologist performed an angioplasty and implanted a stent. While working on the decedent, he perforated the plaintiff’s artery, and an anesthesiologist administered anesthesia. When the anesthesiologist tried to intubate the patient, he accidentally put the tube in the esophagus, resulting in the patient’s oxygen dropping and the patient suffering cardiac arrest. They ventilated the decedent and corrected the perforated artery through further surgery. However, the loss of oxygen caused him permanent brain damage, and he died two days later.
The decedent’s estate and two daughters sued the doctors and the hospital. They filed three expert reports on time in accord with Chapter 74 of the Texas Civil Practice and Remedies Code. The doctors filed motions to dismiss on the grounds that the expert reports were inadequate. After both the motions and the plaintiff’s responses were filed, one of the accused doctors provided a discovery response that stated the true name of the anesthesiologist that cared for the decedent and made the intubation error. The trial court denied the motions, and the doctors appealed.
Under Texas Civ. Prac. & Rem. Code § 74.351(a), plaintiffs with health care liability claims need to serve defendant physicians with one or more expert reports and CVs for any expert whose opinion substantiates the merits of the claims. The report needs to give a summary of the expert’s opinions about the standard of care, causation, and how the care provided didn’t meet the standard.
The appellate court explained that if a motion to dismiss is filed challenging an expert report, the trial court can deny the motion to dismiss if the report is adequate, grant the motion to dismiss if the expert report doesn’t in good faith try to comply with the statute, and grant an extension to cure a good-faith deficiency. Trial courts are supposed to be lenient about granting extensions.
What counts as a good-faith effort in a report? The report has to inform the defendant what in his conduct was problematic and give the trial court a basis to conclude that the plaintiff’s complaint has merit. The report needs to provide any relevant facts that form the basis of the expert’s opinions.
An appellate court reviews motions to dismiss for an abuse of discretion. The cardiologist argued that the plaintiff’s expert reports from an anesthesiologist, a cardiologist, and a board-certified anesthesiologist were insufficient. Only the board-certified anesthesiologist offered an opinion about him, but the defendant cardiologist argued it was inadequate because he wasn’t qualified to give an opinion on cardiology. The appellate court explained that, to be qualified, an expert must be practicing medicine either at the time of testimony or when the claim arose, know the accepted standards, and be qualified by training or experience to provide an expert opinion about standards of care. A doctor can be qualified to provide an opinion even when his specialty is different from the defendant’s if he has practical knowledge about what others in the defendant’s field do in similar circumstances. The appellate court found that the expert report didn’t give enough of a basis to show that the anesthesiologist was qualified to opine on the defendant cardiologist. Although the appellate court found the report deficient, it also found it was a good-faith effort to comply and found that the plaintiffs should have a 30-day extension to cure the deficiency.
Another defendant doctor argued that he wasn’t the anesthesiologist who intubated the decedent and that two of the reports didn’t mention him by name and the third established he was not the right party to sue. The court found that an expert report typically identifies a defendant doctor by name, but the statute didn’t specifically require it. Otherwise, the report was adequate. The court found that the amount of evidence available when drafting expert reports would be less than what was available at trial, so the reports didn’t need to marshal all proof.
In this case, the defendant was the anesthesiologist of record, and the report was a good-faith effort to comply. Therefore, the court concluded there was no abuse of discretion in denying the doctor’s motion to dismiss.
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