A split panel of the Austin Court of Appeals has remanded a health care liability claim to a Bell County trial court based on the inadequacy of the plaintiff’s expert report required by Chapter 74, CPRC. In a majority opinion by Chief Justice Byrne, the court found that the report did not constitute the statutorily required “good-faith effort to provide a fair summary of the expert’s opinion” (§ 74/351(l), (r)(6), CPRC) because it failed to (1)“inform the defendant of the specific conduct the plaintiff has called into question, and (2) provide a basis for the trial court to conclude the claims have merit.”

The case, HMIH Cedar Crest, LLC d/b/a Cedar Crest Hospital & RTC v. Christina Buentello, Individually and As Next Fried of D.B.J., a Minor (No. 03-20-0377-CV) arose from an assault of the plaintiff’s 6-year-old son by his 8-year-old roommate in a psychiatric facility. Responding to screaming and crying coming from the room, the staff discovered the assault and removed the 8-year-old to another room. The staff noticed abrasions on D.B.J.’s throat, but it was not until the following morning that the oncoming registered nurse assessed the child, noticed the swelling and bruising around both eyes and neck, and sent him to the emergency room about 13 hours after the assault. The plaintiff sued the facility alleging negligent hiring, retention, and supervision, and medical malpractice for failing to monitor, protect, assess, and treat D.B.J. properly. The facility objected to the plaintiff’s expert report, which the trial court denied. The facility filed an interlocutory appeal.

The court of appeals’ analysis turned on whether the expert report adequately identified what care the facility should have provided that it did not. According to the majority, the expert report “fails to set out the measures that Cedar Crest should have taken in assessing, treating, and transporting D.B.J.” The expert’s opinion that the facility should have provided “‘adequate’ assessment and treatment, ‘timely’ transport . . . to emergency care, and ‘therapeutic treatment’ do not inform either Cedar Crest of the trial court what the applicable standards are other than that Cedar Crest failed to meet those undefined standards.” Further, the majority found that the report did not make the necessary causal connection between violation of the standard of care and the plaintiff’s injuries. The “report is vague about what injuries D.B.J. suffered from Cedar Crest’s acts or omissions, and does not explain if or how the injuries are distinct from those attributable to the assault,” particularly with regard to the “psychological” harm allegedly caused by the facility’s breach of the standard of care. Finally, the report did not indicate that the facility’s acts or omissions were a “but-for” cause of the plaintiff’s harm. Justice Baker disagreed with the majority’s and filed a dissent. Rather than dismissing the suit, the court of appeals remanded to the trial court for a determination of whether the plaintiff should have a 30-day extension to file an amended report, as permitted by § 74.351(c).

This case presents another good example of how tort reform works in practice and of the specific way in which a body of case law develops around an important tort reform statute. Here a majority of the panel scrupulously applied the statute and controlling authority to reach what appears to us to be the appropriate conclusion. It also properly, in our view, remanded the case rather than dismissed it, just as the statute contemplated should happen under appropriate circumstances. This is precisely why we have to have the most qualified people on the bench. Tort reform happens every day in our trial and intermediate appellate courts, not just when the Legislature passes a bill.

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