By a 7-2 vote, the Texas Supreme Court has reversed a Fort Worth Court of Appeals decision dismissing a Chapter 74 claim against a hospital based on an inadequate expert report.
As we first reported last June, Jared Bush, Jr. v. Colombia Medical Center of Arlington Subsidiary, L.P. d/b/a Medical City Arlington and HCA Inc.(No. 23-0460; May 23, 2025) arose from the death of a 35-year-old female from a pulmonary embolism. In February 2018 she fainted and was taken to the hospital, where an emergency room physician charted a primary impression that she suffered a heart attack. She was admitted, and a cardiologist performed a heart catheterization that indicated minor atherosclerotic heart disease. She was discharged the following day in a stable cardiac condition with a two-week followup. Three days later, she returned to the hospital by ambulance in severe respiratory distress and unresponsive. She died later that day. An autopsy revealed a massive pulmonary thromboemboli, which was listed as the cause of death. Her husband, individually and on behalf of the couple’s minor children, sued her three treating physicians and their practice groups, as well as the hospital and HCA. He timely served an expert report prepared by a cardiologist. The hospital objected to the report and moved to dismiss under § 74.351(b), CPRC. The trial court overruled the objection. The hospital filed an interlocutory appeal.
In an opinion by Justice Kerr, the court of appeals reversed and remanded to the trial court for a determination of whether Plaintiff should be granted a 30-day extension to cure inadequacies in the report (JB I; No. 02-20-00190-CV; November 24, 2021). The hospital argued that Plaintiff’s expert, a board-certified specialist in cardiovascular medicine, was not qualified by education, training, or background to render an opinion about the standard of care applicable to a hospital or about causation. The court agreed, though it observed that the Dallas Court of Appeals had reached the opposite conclusion with respect to the same expert in another case, Decker v. Colombia Med. Ctr. of Plano, Subsidiary, L.P. (No. 05-19-01508-CV; October 15, 2020, pet. denied). Applying its own precedent, however, the court determined that although the expert “certainly knows how to treat cardiology patients as a clinician, his report and CV do not show that he has the requisite familiarity with or experience in developing, implementing, and enforcing hospital policies and procedures.” The problem with the report, the court opined, was that the expert “does not describe or connect the dots between clinical pathways he has developed and the ‘triple rule out’ protocol for which he advocates in this case—or even whether his work has been in the context of developing administrative, hospital-specific policies and procedures.” Neither his report nor his CV, moreover, describe any significant experience in hospital administration, though he had plenty of experience as a physician-in-chief in hospital settings. As the expert did not establish his qualifications, his report could not therefore establish causation, either. Specifically, the expert alleged that the hospital’s failure to implement and enforce a “triple rule-out” protocol for identifying and treating decedent’s embolism caused her death. Observing that a hospital cannot practice medicine, i.e., diagnosing and treating illness, the court concluded that Plaintiff’s expert did not opine as to what the hospital could have done differently when faced with the treating physician’s diagnosis and treatment.
On remand, the trial court granted a 30-day extension to cure the report. Plaintiff served an amended report. Once again, the hospital objected and moved to dismiss. Once again, the trial court overruled the motion, and the hospital sought review. In an opinion by Justice Wallach (JB II, No. 02-22-00319-CV; April 20, 2023) the court of appeals once again reversed. The hospital argued that the amended report did not cure the deficiencies regarding causation, which again alleged that the hospital’s failure to implement and enforce a “triple rule-out” protocol caused decedent’s death. Again, the court determined that the report did not explain how a different hospital policy or protocol could be enforced against a physician exercising independent medical judgment about the diagnosis and treatment of a patient. More specifically, the court went on, the report, which called for additional lab work and imaging to rule out a pulmonary embolism, did not explain who should order those tests, interpret them, and implement a treatment plan if not the physicians who were already treating the patient. The expert thus assumed that simply having a prescribed protocol in place would somehow be self-enforcing as to independent medical professionals. Plaintiff sought review, which SCOTX granted.
In an opinion by Justice Huddle, SCOTX reversed and remanded. First, it rejected the court of appeals’ conclusion that the report failed to explain the “how and why” the hospital’s policies could have changed the physician’s treatment of the decedent. Instead, the Court held that “the amended report ‘draws a line directly’ from the Hospital’s failure to adopt policies or protocols ‘regarding the evaluation, indentification and communication related to treating acute cardiac patients’ to the physicians’ failure to identify and treat [the decedent’s] pulmonary embolism, which led to the ultimate injury—her death.” According to Justice Huddle, the expert report adequately covered both the “cause-in-fact” element (the hospital’s failure to implement a Triple Rule Out protocol) and “foreseeability” element (the decedent’s symptoms indicated a life-threatening condition that following the protocol would have discovered).
The Court took the court of appeals to task for “exceed[ing] the scope of the fair-summary standard by impermissibly weighing the credibility of the expert’s opinions” (citation omitted). By concluding that the physician expert could not adequately opine on hospital policies, “[t]he court fashioned a hurdle that is neither statutorily nor judicially mandated: ‘[A]n expert purporting to pin direct rather than vicarious blame on a hospital for a policy or protocol failure should reasonably be expected to explain how his opinions do not implicate the practice of medicine, even at this preliminary stage’” (citation omitted). Emphasizing the “leniency” standard for determining the adequacy of § 74.351 expert reports, the Court observed that the court of appeals’ higher standard would (1) “essentially force experts to anticipate and refute potential defensive theories in reports they author pre-litigation,” and (2) “presume[] that the Hospital’s implementation of the policies and protocols [the expert] describes would constitute the unlawful practice of medicine.”
The majority went to great lengths to distinguish between a hospital’s direct intervention in the exercise of a physician’s judgment and the adoption of policies, protocols, or standing orders directing hospital staff to run appropriate tests and communicate the results to the physician. This strikes us as a very fine line indeed. The majority pointed to the expert’s opinion that hospital administrators breached a standard of care for not adopting a Triple Rule Out protocol. But if the Triple Rule Out protocol was the industry standard, the physician responsible for treating the patient would presumably know that and order the appropriate tests with or without the protocol. Holding the hospital responsible under those conditions strikes us as a potential “gotcha,” because there will always be some policy or protocol that could theoretically have made a difference in the physician’s treatment decision.
Justice Bland, joined by Justice Devine, dissented. The opinion largely tracks the reasoning of the court of appeals that hospitals are not authorized to practice medicine and should not be held liable for “injuries that independent physicians cause, based on an allegation that the hospital failed to develop policies preventing physician negligence.” In short, the majority departed from its own case authority by imposing vicarious liability for the negligent acts of independent contractors on the basis of safety policies. “With hinsight and the aid of the majority’s opinion,” Justice Bland wrote, “future experts will testify in every medical malpractice case that a hospital policy could have prevented a doctor’s negligence. Affording merit to hindsight opinions lacking specific causation will make hospitals guarantors of nonemployee conduct. Such a holding undermines Chapter 74’s fundamental purpose, which is to focus healthcare liability claims on the pursuit of truly culpable defendants”
When we initially reported this case, we took the position that the Fort Worth court got it right both times. In both opinions, the court of appeals emphasized that in a direct liability claim against the hospital, as presented here, a physician, no matter how experienced in clinical practice, is not an administrator responsible for developing, implementing, and enforcing hospital procedures and protocols. And with regard to the issue of the appropriate protocol (here the “triple rule-out” protocol), the court, we believed, quite rightly pointed out that diagnosis and treatment has to be done by a physician regardless of “protocol.” Even if the “triple rule-out” policy had existed in this case, who could have compelled the physician to follow it? A nurse? The hospital’s lawyer? It’s one thing to argue that the physician should have known better (as plaintiff undoubtedly did in his action against the doctors); it’s quite another to hold a non-physician responsible for a quintessentially medical decision to treat a patient a certain way.
