A split decision by a panel of the Corpus Christi Court of Appeals in a medical malpractice has drawn a second dissenting opinion criticizing the majority of the panel for blocking en banc review of its decision.
Octavio Aguilera; The Schumacher Group of Texas, Inc.; VHS Harlingen Hospital Company, LLC d/b/a Valley Baptist Medical Center-Harlingen; Adrian Alaniz; Kristen White; George Huddleston, IV, M.D.; and William Taw, M.D. v. Eliazar Costilla, Individually and as the Representative of Kristy Renee Costilla, Deceased, and as Next Friend of A.J.C. and C.K.C., Minors; Melinda Rodriguez Leal; and Camilo Trevino (No. 13-21-00135-CV; filed March 30, 2023) arose from the death from a brain hemorrhage. The 41-year-old patient arrived in the emergency room on the evening of September 24, 2018 showing symptoms of a stroke. A CT scan showed a subarachnoid hemorrhage, upon which she was transferred to the ICU. A few hours later, she experienced seizures and was placed on a ventilator. Her condition deteriorated, and she died on the afternoon of September 25. Plaintiffs filed a health care liability claim against the hospital, two nurses (Alaniz and White), a nurse practitioner (Aguilera) and his employer (Schumacher), a hospitalist (Dr. Huddleston), a radiologist (Dr. Taw), and three other physicians. They filed three expert reports pursuant to § 74.351, two by physicians and one by a registered nurse. Each of the defendants objected to the adequacy of the reports and moved to dismiss. The trial court denied the motions. The providers appealed.
In an opinion authored by Justice Tijerina and joined by Justice Pena, the court of appeals reversed and remanded to the trial court for consideration of whether plaintiffs should be given a 30-day extension of amend their expert reports. The court considered each defendant’s objections in turn. First, Aguilera, the nurse practitioner, objected that the experts never mentioned him or his conduct in any of the reports, much less the applicable standard of care, how Aguilera breached the standard, and how the breach caused the injury. Because the report was “so deficient as to constitute no report at all,” Aguilera was entitled to automatic dismissal, since the lack of a report never triggered the 21-day deadline to object. Aguilera’s employer, Schumacher, objected that since its liability was purely vicarious and based on Aguilera’s conduct, the determination of a nonexistent report took them out of the case as well. The court of appeals agreed.
Turning to Dr. Huddleston, the court found that the expert reports “do not set forth a standard of care for [him], do not explain how [he] deviated from the standard of care, and do not give insight as to how [his] actions caused [decedent’s] injuries.” Moreover, “if a plaintiff sues more than one defendant, the expert report must set forth the standard of care for each defendant and explain the causal relationship between each defendant’s individual acts and the injury” (citation omitted; emphasis added). Here plaintiffs asserted that “one size fits all” as to the standard of care for each provider they sued. Regarding Dr. Huddleston, the reports barely alluded to him at all and certainly did not “state what [he] did or failed to do that caused [decedent’s] injuries.” In short, since the reports were “so lacking,” as was the case with Aguilera and Schumacher, they constituted no report and required dismissal. Additionally, no 30-day extension to amend a defective report was available to plaintiffs regarding these defendants.
The court then considered the objections of Dr. Taw, the nurses White and Alaniz, and the hospital. Dr. Taw objected that since none of the experts were radiologists and that the reports utterly failed to “differentiate a standard of care as to him,” they were inadequate. The court agreed, holding that the “one-size-fits-all” approach taken by the plaintiffs did not satisfy the statutory requirements. In her dissenting opinion, Justice Benavides pointed to Dr. Taw’s alleged failure to image the correct location in the brain for the type of aneurysm decedent suffered, and that if he had properly imaged the location and correctly diagnosed the problem, decedent could have been saved. But, as the majority observed, the expert who opined on Dr. Taw never stated that he had a duty to diagnose anything, only to interpret the scan. The expert likewise did not explain who should have ordered the images Dr. Taw was alleged to have neglected. The only thing the expert did was make a conclusory statement that Dr. Taw incorrectly described the aneurysm. From that statement, the court concluded, it could not infer the applicable standard of care. Even so, the court added, the expert opined only that had Dr. Taw obtained the correct images, there was a possibility that the patient could have had life-saving emergency surgery. As SCOTX has held, “an expert report that speaks only of possibilities will not suffice to meet the causation standard” (citations omitted). Again responding to the dissent, which argued that the reports, taken as a whole, put Dr. Taw on notice of the specific conduct they challenged, the majority noted that it didn’t matter whether Dr. Taw understood that, but whether the reports complied with the statute, as determined from the four corners of each report itself. The court remanded this report back to the trial court for consideration of whether to grant an extension.
As to the nurses White and Alaniz, the court observed that a non-physician may not opine on causation. Thus plaintiffs’ expert on the standard of care for the nurses, who opined that they should have recommended another CT scan to the physicians when decedent’s condition got worse, could not supply the causation link. Turning to the physician expert reports, the majority noted that both of them complained, not of the nurses, but of the physicians’ failure to order another scan in a timely fashion. As to Alaniz, one of plaintiffs’ expert physicians alleged that his failure to maintain decedent’s fluids put increased pressure on decedent’s brain, but even so, the majority held, neither expert “opined that Alaniz’s failure to maintain [decedent’s] fluids was a substantial factor in bringing about [her] death and that absent this factor, the harm would not have occurred.” Again, the dissent argued that the imbalance of fluids issue was clearly stated in the expert reports and put Alaniz on notice of his alleged negligent conduct, and, again, the majority stated that the reports themselves must satisfy the causation element, which these did not. Finally, because the majority found the reports as to White and Alaniz deficient, they were likewise deficient as to the hospital because its liability was premised on vicarious liability for the nurses’ conduct. The court remanded to the trial court for consideration of an extension.
This case is, of course, worth reading for its discussion of § 74.351’s requirements. But it is unusual because of its sequel. On June 8, a little more than two months after the majority issued its decision, Justice Benavides, joined by Chief Justice Contreras and Justice Longoria, filed a second dissenting opinion stemming from a 3-3 split that resulted in the denial of en banc reconsideration of the majority decision. This deadlock set up a problem, according to Justice Benavides, because “only two members of this court joined the original decision that now binds all six members.” Consequently, she argued, the opinion is a plurality opinion with no precedential value. And while the Texas Supreme Court has hitherto declined to “appoint tie-breakers” when motions for rehearing or rehearing en banc are evenly divided (citing Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 612 (Tex. 1996)), Justice Benavides acknowledged, “I fail to see how establishing bad precedent is a less burdensome result for the people of Texas, and I must emphasize the negative impact this decision will have on future cases… I continue to believe Aguilera was wrongly decided, and I fear we risk delegitimizing the judiciary when we treat as precedent a decision by two justices that fails to amass support from a majority of our en banc court.”
Setting the merits of this case aside, Justice Benavides raises a legitimate question about what happens when a split panel decision runs into an impasse on en banc reconsideration. Should this opinion have an asterisk attached to it? In our opinion, it should not. Because so many intermediate appellate opinions involve the adequacy of § 74.351 expert reports, and each of these decisions rises or falls based on unique facts, we don’t see precisely how the existence of this opinion in itself should seriously prejudice the rights of future litigants in this area. Perhaps there are circumstances under which a “tie-breaker” should trigger if a court of appeals splits down the middle, as it did here. Then again, this doesn’t happen all that often (though it does happen), so whether the game is worth the candle seems case-specific and not suited to a general “rule.”
