Verdicts

TX Statute Renders Expert Report Indispensible, Even for Non-Medical Claim

Even though the plaintiffs' claims did not sound in medical malpractice, Texas' Medical Liability Act required them to provide the hospital defendant with an expert report or face dismissal. CHCA Bayshore L.P. v. Ramos, 2012 Tex. App. LEXIS 5780 (7/19/12).

A woman and her husband sued the hospital at which she underwent a dilation and curtilage procedure after their 12-week-old fetus died. The fetal tissue was sent to a lab for tests after the procedure, but the doctor agreed to return it to the plaintiffs for burial as soon as those tests were completed. The pathology department turned over a specimen to the funeral home representative who went to the hospital at the plaintiffs' request, but it turned out later to be the wrong specimen. It was buried, then exhumed. The plaintiffs were later able to bury their lost child.

They sued the hospital for negligent infliction of emotional distress and for negligence, specifically due to its employees' botched attempts to give them the right specimen, and the hospital's failure to properly train those employees or have in place adequate policies and procedures to avoid mistakes such as this. The hospital moved for dismissal after the plaintiffs failed to file an expert medical opinion in support of their case. The plaintiffs argued that no such report was necessary as theirs was not a health care liability claim in that “there is no specialized standard in the health care community that applies for the pathology department['s] failure to deliver the correct remains to the funeral home; and there is no medical judgment related to the care or treatment of the fetal remains.” The trial court agreed with the plaintiffs and denied the motion, leading to this interlocutory appeal.

The question on appeal was whether the plaintiffs' claim qualified as a health care liability claim governed by the Medical Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. ” 74.001-.507. If so, ' 74.351(a) required them to serve an expert report on each party or his counsel no later than 120 days after filing their petition for relief. Failure to do so would require the trial court to dismiss the claim on the defendant's motion. Section 74.001(a)(13) defines a health care liability claim as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.” Referring to this definition, the appeals court concluded that the plaintiffs' claims were health care claims, despite the fact that no medical standards of care were implicated. The court found that the “separate aspect of the statutory definition of 'health care liability claim' ' that term's inclusion of 'professional or administrative services directly related to health care' ' more naturally captures the essence of the [plaintiffs'] claims.” Therefore, the plaintiffs should have produced an expert's report. Having failed to do so, their claim must now be dismissed on the defendant's motion.

Justice Terry Jennings dissented. Finding the majority's reading of the statute nonsensical, Judge Jennings wrote “[A]lthough an 'expert' report in ordinary negligence and premises-liability cases made against physicians or health care providers is not at all necessary to evaluate whether a plaintiff's claim is frivolous, the plaintiff ' must nevertheless hire an 'expert' to write a report and then provide the meaningless report to defense counsel for the sole purpose of avoiding the dismissal of the lawsuit. The requirement of such a meaningless act truly places form over substance, belittles the practice of law, and serves only to undermine the Rule of Law.”

TX Statute Renders Expert Report Indispensible, Even for Non-Medical Claim

Even though the plaintiffs' claims did not sound in medical malpractice, Texas' Medical Liability Act required them to provide the hospital defendant with an expert report or face dismissal. CHCA Bayshore L.P. v. Ramos, 2012 Tex. App. LEXIS 5780 (7/19/12).

A woman and her husband sued the hospital at which she underwent a dilation and curtilage procedure after their 12-week-old fetus died. The fetal tissue was sent to a lab for tests after the procedure, but the doctor agreed to return it to the plaintiffs for burial as soon as those tests were completed. The pathology department turned over a specimen to the funeral home representative who went to the hospital at the plaintiffs' request, but it turned out later to be the wrong specimen. It was buried, then exhumed. The plaintiffs were later able to bury their lost child.

They sued the hospital for negligent infliction of emotional distress and for negligence, specifically due to its employees' botched attempts to give them the right specimen, and the hospital's failure to properly train those employees or have in place adequate policies and procedures to avoid mistakes such as this. The hospital moved for dismissal after the plaintiffs failed to file an expert medical opinion in support of their case. The plaintiffs argued that no such report was necessary as theirs was not a health care liability claim in that “there is no specialized standard in the health care community that applies for the pathology department['s] failure to deliver the correct remains to the funeral home; and there is no medical judgment related to the care or treatment of the fetal remains.” The trial court agreed with the plaintiffs and denied the motion, leading to this interlocutory appeal.

The question on appeal was whether the plaintiffs' claim qualified as a health care liability claim governed by the Medical Liability Act. See Tex. Civ. Prac. & Rem. Code Ann. ” 74.001-.507. If so, ' 74.351(a) required them to serve an expert report on each party or his counsel no later than 120 days after filing their petition for relief. Failure to do so would require the trial court to dismiss the claim on the defendant's motion. Section 74.001(a)(13) defines a health care liability claim as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.” Referring to this definition, the appeals court concluded that the plaintiffs' claims were health care claims, despite the fact that no medical standards of care were implicated. The court found that the “separate aspect of the statutory definition of 'health care liability claim' ' that term's inclusion of 'professional or administrative services directly related to health care' ' more naturally captures the essence of the [plaintiffs'] claims.” Therefore, the plaintiffs should have produced an expert's report. Having failed to do so, their claim must now be dismissed on the defendant's motion.

Justice Terry Jennings dissented. Finding the majority's reading of the statute nonsensical, Judge Jennings wrote “[A]lthough an 'expert' report in ordinary negligence and premises-liability cases made against physicians or health care providers is not at all necessary to evaluate whether a plaintiff's claim is frivolous, the plaintiff ' must nevertheless hire an 'expert' to write a report and then provide the meaningless report to defense counsel for the sole purpose of avoiding the dismissal of the lawsuit. The requirement of such a meaningless act truly places form over substance, belittles the practice of law, and serves only to undermine the Rule of Law.”