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Texas Supreme Court Establishes Minimal Standard for What Constitutes an Expert Report

by Leah Greene, JD, LLM on July 18th, 2011

A key defense argument when objecting to a Chapter 74 expert report is the report is so deficient, it constitutes no report. If sustained, this objection denies the plaintiff the 30-day grace period to file an amended report to cure any deficiencies and results in dismissal of the lawsuit.

On July 1, 2011, the Texas Supreme Court set parameters for determining when a deficient expert report constitutes no report in its 7-1-2 opinion in Scoresby v. Santillan. It created an admittedly minimal standard.

In Scoresby, a neurologist authored the sole Chapter 74 expert report in a medical negligence suit against two otolaryngologists. He alleged they negligently performed surgery on a minor’s sinus cavity which caused brain damage and partial paralysis.

The plaintiffs timely served a Chapter 74 expert report, but they did not attach the expert’s curriculum vitae as Chapter 74 requires. The report did not describe the expert’s qualifications more than to state he was a Board Certified neurologist. Both surgeons objected to the report, claiming the expert opinions regarding standard of care, breach, and causation were conclusory. The trial court denied the motions to dismiss and granted a thirty-day extension to file an amended report. The appellate court determined it lacked jurisdiction because a ruling that grants a 30-day extension to file an amended report is not appealable.

The Court determined that the report was a good faith effort. It also explained the following with respect to determining whether a report meets a minimal threshold to constitute a report:

We conclude that a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant’s conduct is implicated.  We recognize that this is a minimal standard, but we think it is necessary if multiple interlocutory appeals are to be avoided, and appropriate to give a claimant the opportunity provided by the Act’s thirty-day extension to show that a claim has merit.  All deficiencies, whether in the expert’s opinions or qualifications, are subject to being cured before an appeal may be taken from the trial court’s refusal to dismiss the case.

The Court dismissed the appeal for want of jurisdiction.  It also noted that the plaintiffs had filed an amended report in the trial court, and the physicians had renewed their objections and motions to dismiss. The Court acknowledged that another appeal of the expert report would likely be filed.

The dissent pointed out that the letter said nothing about the plaintiff’s expert’s qualifications regarding the standards of care for the surgery at issue. The dissent stated it would have held that a report by an expert who was not qualified is “not merely a deficiency in an element of the report, it is a deficiency going to the question of whether the report is competent and is entitled to be given any weight.”  It explained that a report filed by an unqualified expert demonstrates that the claim lacks merit and must be dismissed.  The majority refused to address this issue because it was not raised in the trial court.

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