In an appeal from a Cameron County district court, the Corpus Christi Court of Appeals has held that the trial court did not abuse its discretion in finding a medical malpractice plaintiff’s expert report inadequate under Chapter 74, CPRC.
Eva Hernandez, as Next Friend of Juan Hernandez v. Wilfredo Crespo-Velez, M.D. (No. 13-23-00160-CV; delivered August 30, 2023) arose from significant complications following the plaintiff’s husband’s heart surgery at Valley Regional Medical Center. A few days after surgery, Hernandez developed ischemia in his left hand and left leg. He then developed thrombocytopenia, a condition in which platelet levels in the blood drop to dangerously low levels. Hernandez subsequently lost his left hand and part of his left foot, which had to be amputated. Plaintiff sued the hospital, Dr. Crespo-Velez, and other attending physicians. Plaintiff served an expert report pursuant to § 74.351(a). Dr. Velez filed objections to the report and moved to dismiss, asserting that the expert’s opinions were conclusory and speculative. The trial court granted the motion to dismiss and signed an order dismissing plaintiff’s claims with prejudice. Plaintiff filed a motion for rehearing and a supplemental report by her expert. The trial court denied rehearing, and plaintiff sought an expedited interlocutory appeal.
In an opinion by Chief Justice Contreras, the court of appeals determined that the trial court did not abuse its discretion in finding plaintiff’s original report inadequate under the statute. Specifically, the expert opined that Dr. Crespo-Velez breached the standard of care by, following Hernandez’s angiogram, “apparently allowing” Hernandez to continue on a Heparin “during a procedure in someone who you highly respect has HIT [Heparin-induced thrombocytopenia] and has evidence of thrombosis.” Dr. Crepez-Velez argued that the report did not give fair notice regarding the standard of care or causation because “there is not specific mention as to what specific days [Crespo-Velez] was involved after the angiogram on 11/27, what specific care he gave to Mr. Hernandez, and any orders given by him.” He argued further that the report indicated no causation because it did not link the care given on the day of the angiogram and the subsequent amputation of Hernandez’s hand and foot.
The court affirmed that the expert report was inadequate as to causation. Observing that “the Texas Supreme Court has held that an expert report must explain how and why the defendant’s breach proximately caused the plaintiff’s injury,” for which the plaintiff must establish both foreseeability and cause-in-fact (i.e., substantial factor + but-for causation), the court concluded that the report was deficient as to proximate causation. Although there may be more than one proximate cause of an injury, the court noted, “in this case, at least four other physicians, as well as hospital staff, are alleged to have contributed to the improper administration of Heparin, and there is nothing in [the expert’s] original report specifying how or why Cresp-Velez’s actions or omissions, in particular, were a substantial factor in causing [Hernandez] to suffer additional injury. The trial court could have determined that [the expert’s] original report contains no more than speculation in this regard.”
All was not lost for the plaintiff, however, as the court went on to determine that the trial court did abuse its discretion by refusing to grant a 30-day extension to allow the plaintiff to cure the deficiencies in the report, as provided by § 74.351(c). In Ogletree v. Matthews, 262 S.W.3d 316, 319-21 (Tex. 2007), SCOTX ruled that Chapter 74 does not authorize an extension when the plaintiff serves an expert report so deficient that it amounts to “no report,” but requires it when deficiencies exist that could be cured within 30 days (citations omitted). Plaintiff argued, and produced a supplemental report from the same expert, that § 74. 351(c) mandates an extension in this case. She further asserted that Crespo-Velez had failed to argue in the trial court that the original report constituted “no report.” The court of appeals agreed with the plaintiff, noting that Crespo-Velez “[did] not offer any substantive argument for why the trial court would have been justified in making that finding” in any event. As to the original report itself, the court determined that “[a]t the very least, the report implicates Crespo-Velez’s conduct and demonstrates that, in [the expert’s] view, the claim against him has merit” (citations omitted).
Plaintiff also properly followed the procedure laid down by SCOTX in Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (plurality op.) for the case in which a trial court “simultaneously finds the expert report deficient, denies a motion to cure, and dismisses the underlying health care liability claim …” That procedure entails moving for reconsideration and serving a new report shoring up the alleged deficiencies, all within the 30-day window. If the trial court refuses to reconsider under these circumstances, “the now compliant report will typically establish the trial court’s abuse of discretion.” 332 S.W.3d at 411. Here plaintiff’s supplemental report “contained far more detail regarding the standard of care applicable to Crespo-Velez, the alleged breach, and causation.” Since Crespo-Velez did not argue on appeal that the supplemental report was likewise deficient, the court remanded to the trial court with instructions to allow plaintiff one 30-day period to cure in accordance with § 74.351(c).
