The Tyler Court of Appeals has affirmed a trial court order denying a physician’s motion to dismiss a health care liability claim based on an inadequate expert report.
Antoine Phasha Washington, M.D., Sonic Healthcare USA, Inc., and Aurora Diagnostics, LLC v. Glenna L. Lackey (No. 12-25-00283-CV; March 25, 2026) arose from an alleged cancer misdiagnosis. Defendant, a pathologist, diagnosed Plaintiff with adenocarcinoma. Based on the diagnosis, Plaintiff underwent a Whipple procedure, which Mayo Clinic describes as “an operation to treat tumors and other conditions in the pancreas, small intestine, and bile ducts.” Two physicians who reviewed the surgical pathology, however, concluded that Plaintiff didn’t have cancer and didn’t need the surgery. Plaintiff sued the pathologist and others, alleging negligence. She served an expert report in accordance with § 74.351. Defendants filed objections to the report and moved to dismiss. The trial court granted Plaintiff 30 days to cure deficiencies regarding standard of care, breach, and causation. Defendants again objected to the supplemental report and moved to dismiss. The trial court denied the motion. Defendants appealed.
In an opinion by Justice Davis, the court of appeals affirmed. Defendants challenged the report’s adequacy with respect to standard of care, breach, and causation. As to standard of care, they argued that Plaintiff’s report “simply states that a pathologist should make a correct diagnosis.” To the contrary, the court responded, the report describes each step in the process designed to “ensure accurate diagnosis and appropriate patient care,” including, in cases as “difficult” as this one, consulting outside experts or suggesting additional biopsy material. Turning to the breach of the standard, the court observed that Plaintiff’s report stated that if Defendant had “sent out the slides [of the biopsied tissue] for outside consultation prior to making his diagnosis of adenocarcinoma, it is probable that a definitive diagnosis of adenocarcinoma would not have been rendered on this material.” And if Defendant had gotten that opinion, a dangerous surgical procedure would have been avoided. The trial court could thus “reasonably determine that [the expert] report represented a good faith effort to summarize the causal relationship between [Defendant’s] failure to meet the applicable standard of care and [Plaintiff’s] injuries and damages.”
Though the court acknowledged that “the report could have provided a more robust discussion of [the expert’s] opinion on the causal relationship between [Defendant’s] breach and [Plaintiff’s] harm,” it still had enough to clear the “low initial threshold intended to deter frivolous claims.” The trial court did not abuse its discretion in denying Defendants’ objections and their motion to dismiss.
