Reversing a trial court order denying a health care provider’s motion to dismiss a medical malpractice lawsuit, the El Paso Court of Appeals has sent the case back to the trial court for consideration of whether Plaintiff should be given a 30-day extension to cure the deficiencies in the report.
Kimberly Jean Golucke, Individually and as Authorized Agent of El Paso Health & Rehabilitation Center v. Martha Lopez (No. 08-21-00030-CV) arose from a patient fall in a rehabilitation center. Lopez, recovering from knee replacement surgery, fell when trying to walk to the bathroom with assistance. She suffered a broken femur that required surgical repair. She sued the center and several other entities and individual nurses, including Golucke, for negligence and gross negligence. Golucke challenged the adequacy of Plaintiff’s expert report, in which a board-certified physician opined that the center and the nurses collectively breached the standard of care from preventing patients from falling, and that the breach proximately caused Plaintiff’s injuries. The trial court denied Golucke’s motion to dismiss. Golucke filed an interlocutory appeal.
The court of appeals reversed and remanded. Most of the analysis in the opinion centers on the expert’s failure to explain how the rather generic description of the standard of care applied specifically to Golucke and put her on fair notice of the conduct complained of. In general, “when a plaintiff sues more than one defendant, the expert report must set forth the standard of care applicable to each defendant and explain the causal relationship between each defendant’s individual acts and the injury” (citations omitted). Nevertheless, an expert report may be rendered in good faith if it includes that “multiple defendants owed the same standard of care to the plaintiff, and breached that duty in the same manner” (citation omitted). But such a report alleging collective negligence “must explain why, under the particular circumstances, the providers owed the same standard of care to the plaintiff and breached that duty in the same manner” (citations omitted).
Golucke challenged the report for “lump[ing] together multiple defendants without adequate explanation as to why the standard of care is identical for all providers” and “fail[ing] to explain how each defendant breached the standard of care.” She further challenged the causation element of the report. The court details the facts and opinions contained in the expert’s statement, none of which alluded specifically to Golucke’s conduct, to the effect that the facility and it staff should not accepted the patient in the first place, but since it did, it should have performed an appropriate fall-risk assessment and put in place numerous safeguards to keep the patient from getting out of bed and going to the bathroom unassisted. The court analyzes several cases with fact situations in which an expert report assigned collective responsibility, but most of those involved entity defendants, such as hospitals, and not several individual nurses or other providers. Instead, the court holds that the report was inadequate because, contrary to cases in which reports assigning collective responsibility under a general standard of care, the report did not specify how Golucke was involved in Plaintiff’s care. And, since the report failed to adequately explain what standard of care applied to Golucke and how she breached it, it failed to show proximate causation.
The court of appeals returned the case to the trial court for a determination of whether the case should be dismissed, or Plaintiff be granted the opportunity to correct the report’s deficiencies. Citing SCOTX authority, the court determined that remand was proper because, while the report did not adequately link Golucke’s conduct to Plaintiff’s injury, it nevertheless stated the expert’s opinion that Plaintiff’s claim had merit.
This opinion bears study for its exploration of the case law on expert reports that apply a general standard of care to multiple providers and allege a collective breach of that standard. Whether such a report will pass muster requires a fact-intensive analysis, so med-mal lawyers will get a lot out of this case in terms of how to distinguish between the cases in a way that assists their client.
