November Texas Supreme Court Medical Malpractice Docket: When is a Report not a Report?

In November, the Texas Supreme Court will hear oral arguments in a case expected to address an issue previously ignored by the Court’s majority: When is a Chapter 74 expert report so deficient that it constitutes “no report at all”?

In Scoresby v. Santillan, No. 090497, the plaintiffs sued two ENT surgeons, Drs. Scoresby and Ducic, alleging that their negligence during surgery caused the patient to suffer a cortical laceration with resulting neurological deficits. The plaintiffs served the defendant surgeons with a letter that appeared to have been authored by a consultant physician who had examined the patient prior to suit being filed. The letter made only these two statements regarding liability or damages:

• As a Board-Certified neurologist, my opinion is that Dr. Ducic violated the standards of care, as well as Dr. Scoresby, and as a result his damages are that of a right sided hemiparesis with possibility of seizure foci in the future.
• Had it not been for Dr. Ducic and Dr. Scoresby’s negligent activity in causing cortical laceration of this patient’s left parietal lobe, he would not have needed further hospitalization at John Peter Smith or the ICU therapy, or going to HealthSouth Rehab, and is now left with a right hemiparesis at a young age.

The consultant’s curriculum vitae was not served with the letter. The letter stated the consultant was Board certified in neurology, but provided no other explanation of how he was qualified to offer opinions regarding an ENT surgeon.

The defendant surgeons filed a motion to dismiss on the basis the letter wholly failed to meet any of the elements in the definition of an “expert report” (standard of care, breach and causation) and for failing to include a curriculum vitae or explanation of how the consultant was qualified to render those opinions. The trial court denied the motion to dismiss and granted the plaintiffs 30 days to file an amended report. If a proffered expert report is found to be deficient, the trial court is allowed to grant a 30-day extension to allow the plaintiff to cure the deficiencies. If no report is served, the trial court cannot grant an extension.

An interlocutory appeal was filed on the basis that the letter was not a report as defined by Chapter 74 and the trial court improperly granted the plaintiffs a 30-day extension to file an amended report. The Fort Worth Court of Appeals held it did not have jurisdiction over the case because a trial court granting a 30-day extension is not an appealable issue.

However, the Court cited heavily to the concurring opinions of Texas Supreme Court Justices Willett and Johnson from previous cases regarding the need for the Supreme Court to address the issue of how the trial court should treat “a document so utterly lacking that, no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one.” In Lewis v. Funderburk, 253 S.W.3d 304 (Tex. 2008), the original report produced by the plaintiff was nothing more than a “thank-you-for-your-referral letter,” which, Justice Willett noted in a concurring opinion, would have been the proper case to resolve this issue had the defendant physician appealed on that basis. The Fort Worth Court also referenced Justice Johnson’s concurring opinions in In re Watkins, 279 S.W.3d 633, 636 (Tex. 2009), in which he pointed out that a document that did not mention the applicable standard of care or how a breach of that standard proximately caused the plaintiff’s injuries was not a “deficient” report, but was “not a statutory expert report at all.”

At least two Appellate Courts, Austin and Houston Fourteenth District, have taken the position expressed in the concurrences of Justices Willet and Johnson that if a report is so deficient it cannot truly be considered a report at all. Two other Appellate Courts, El Paso and Dallas, have not been willing to adopt that position. Given this split in the Appellate Courts, it is likely the Texas Supreme Court will finally resolve this issue. This case is set for oral argument on November 9, 2010.