On a visit to an emergency care clinic, a child received a Bicillin injection in her thigh to treat strep throat. The physician assistant on duty prescribed the injection, which was administered by a medical assistant. The child had adverse reactions in her leg and foot and was transferred to the hospital. She subsequently had several operations to address tissue loss in her leg and now requires physical therapy and orthotics.

These are the facts of Andrea Nicole Fuller, P.A. v. Shon Thomas Milton and Jamie Breanne Milton, Individually and as Next Friends for A.E.M., a Minor (No. 07-23-00204-CV; December 11, 2023). Plaintiffs sued the physician assistant and others and filed expert reports of a physician and registered nurse. The physician’s report did not identify the physician assistant, while the nurse’s report referred to the P.A. as having ordered the shot and reviewing with the LVN and MA who were in the room when the shot was administered where the injection was given. Neither report identified a standard of care required of the physician assistant. The PA filed a motion to dismiss under Chapter 74, CPRC, for failure to comply with the expert report requirement. Plaintiffs responded that the motion was not timely because it was filed 534 days after service of the reports on the defendant. The trial court denied the motion to dismiss. Defendant appealed.

The court of appeals reversed and rendered. As to the timeliness issue, § 74.351(a) requires a defendant to object to the sufficiency of a report within 21 days of service or waive any objections. The statute, however, sets no such deadline for objecting to whether a report constitutes a “good-faith effort” to comply with the report requirement. In other words, filing a non-compliant report is the equivalent to no report at all. Here the court concluded that plaintiffs’ reports did not make a good-faith effort to comply with the statute because they simply did not identify the applicable standard of care. “At best,” the court stated, “[the RN’s] report required [defendant] to infer the standard of care applicable to her and, because no standard of care is identified, the report wholly fails to address how Fuller’s alleged breach of the standard of care caused A.E.M. to suffer damages” (citation omitted).

Even though a case like this might not be very important to the jurisprudence of Chapter 74, it is very important to assuring that the expert report requirement of Chapter 74 does not degenerate into a merely formal exercise. Again, tort reform happens one case at a time and depends, as it did here, on case-by-case enforcement of the law.

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