The Amarillo Court of Appeals has reversed a trial court order denying a physician’s and hospital’s motion to dismiss a health care liability claim for failure to file a sufficient expert report.
Baptist St. Anthony’s Hospital and Rhodesia Castillo, MD v. Daniel Walker and Kristen Walker, Individually and as Next Friend of H.W. (No. 07-22-00032-CV) arose from the delivery of a child who suffered brain damage. Plaintiffs filed expert reports, as required by § 74.351, CPRC, from two physicians and a nurse opining that various negligent acts by the physician and hospital staff resulted in a delayed caesarean section at some point during which the child suffered a stroke. The experts alleged: (1) both nurses and the physician failed to apply a scalp monitor to the child’s head when the mother arrived in labor; (2) the physician left the hospital for about an hour during the mother’s labor; (3) an attending nurse failed to contact others “higher in ‘the chain of command’ when the physician left the hospital; (4) the physician ordered more Pitocin while the child exhibited “non-reassuring fetal heart rate patterns”; (5) the c-section did not begin immediately after the physician ordered it; (6) the physician removed the child by having the nurse push on its head rather than by pulling its feet; (7) the nurses failed to stop the Pitocin and notify the physician upon seeing deceleration in fetal heart patterns earlier in the day; and (8) the nurses failed to administer terbutaline later in the day and before the c-section when the heart pattern did not cease upon discontinuation of the Pitocin. The experts concluded that had the c-section been done sooner and the physician had delivered the child by reverse breech extraction (rather than by pushing on the head), the injury likely would not have occurred. As the court summarized, the “trauma may have been avoided, according to the experts, if the monitoring was better, the doctor acted sooner, and the doctor removed H by pulling on his feet.”
The expert’s opinion, however, lacked “a simple explanation of how and why the misconduct assigned to [the physician] and the nurses was a substantial factor in H suffering ‘a large subacute infarction involving the majority of his left cerebral hemisphere.’” Substantial factor causation requires both a showing of cause-in-fact (an act or omission without which the harm would not have occurred) and foreseeability. Here, however, the experts merely suggested a possible link between the providers’ conduct and the eventual harm; they did not explain “how the conduct caused the injury.” Additionally, some of the conduct, such as the failure to attach a fetal heart monitor to the child’s head, the physician’s brief absence from the hospital, the failure of the nurses to report the physician’s absence to a higher authority, occurred well before the allegedly botched delivery, with no explanation of how any of them were causally connected to the harm. As to other conduct, such as the administration of Pitocin, the delay in starting the c-section, and pushing on the child’s head, the experts speculate about the link to the injury without explaining how each of those acts were a cause-in-fact of the injury.
The court thus concluded that the expert reports failed to meet the “fair summary” test of § 74.351 and dismissed the action with prejudice. It also remanded to the trial court for a calculation of the providers’ reasonable attorney’s fees and court costs. This case clearly presented the trial and appellate court with a very difficult fact situation. But as the court of appeals opinion states, “a tragedy does not relieve anyone, including the judiciary, from complying with § 74.351.” As much as we sometimes probe and question appellate decisions, we equally appreciate the enormous challenge faced by courts in administering justice under the pressure of situations like this one. All of these cases involve real people’s lives and livelihoods, and we should never lose sight of the fact that trial and appellate judges and justices (who are real people, too), we would argue, have the hardest jobs in our system of government. Whether or not we agree with certain decisions does not diminish our appreciation and gratitude for what these public servants do for all of us.
