The Corpus Christi Court of Appeals has reversed and remanded a trial court ruling denying a health care provider’s motion to dismiss for failure to comply with the expert report requirement of § 74.351, CPRC.
Dr. Nolan Perez and Gasterenterology Consultants of South Texas, PLLC v. Elizabeth Hanawa and Ben Hanawa (No. 13-23-00234-CV; February 29, 2024) arose from abdominal surgery performed by Dr. Perez on Plaintiff Elizabeth Hanawa to remove an obstruction in a bile duct. Following surgery, Plaintiff complained of pain and distension, with nausea and vomiting. After treating her with medication, Dr. Perez ordered an X-ray, which revealed nothing. He then ordered a CT without contrast, which was inconclusive. Plaintiff was admitted to the hospital, where a surgical consult was ordered. The surgeon recommended conservative treatment, but when Plaintiff’s pain continued, the surgeon performed exploratory surgery which discovered a perforated small intestine with discharge. He repaired the perforation, but Plaintiff subsequently suffered sepsis and was admitted for long-term acute care. Plaintiffs sue Dr. Perez and his practice for negligence and served an expert report under § 74.351. Defendants objected and moved to dismiss, arguing that the report was conclusory failed to establish the standard of care, breach, and causation. The trial court denied the motion. Defendants filed an interlocutory appeal.
In an opinion by Justice Silva, the court of appeals reversed and remanded. Here the court found that the alleged “breach—Dr. Perez’s failure to order a CT with contrast—caused Elizabeth’s injury. Indeed, it is not entirely clear from the report what injury, harm, or damages Elizabeth is complaining of.” In other words, the report did not establish how or whether Dr. Perez’s decisions about the CT scan resulted in the injury. The court, however, declined to dismiss the case outright, finding that the report not so deficient “as to not constitute a report at all.” It thus remanded to the trial court to allow Plaintiffs to cure the deficiencies in the report.
