David Zinmeister & Marlene Zinmeister v. Houston Methodist Hospital (No. 14-22-00873-CV; May 16, 2024) stemmed from a health care liability claim alleging that the hospital and hospital staff botched David’s post-surgical care by failing to appoint a hospitalist or internal-medicine specialist to assess his complications from gastrointestinal surgery. Plaintiffs allege that the failure resulted in a more than three-month hospital stay that could have been avoided by timely intervention. Plaintiffs served an expert report pursuant to § 74.351, CPRC, authored by a board-certified internal medicine physician and practicing hospitalist. Defendant objected to the report and moved to dismiss. The trial court granted the motion. Plaintiffs appealed.
In a split 2-1decision, the court of appeals reversed and remanded. Writing for the majority, Justice Poissant rejected the hospital’s argument that the report was conclusory as to causation. Specifically, the hospital contended that the report failed to identify what treatment a hospitalist would have ordered different than what treatment Plaintiff received and did not explain why a hospitalist’s treatment would have worked better. Plaintiffs countered that the report identified the applicable standard of care (hospitals should assign a hospitalist to a patient for post-abdominal surgery care) and the hospital’s breach of the standard (it didn’t appoint a hospitalist). Regarding causation, the expert opined that Plaintiff’s complications were not (and could not be) adequately treated by the surgeon, which caused an inordinately long hospital stay with an extended period of deteriorating health. Once the hospitalist got on the case, Plaintiffs argued, the patient got better.
The court observed that while the report did not specifically identify what treatment a hospitalist would have provided, “it [did] provide a fair summary of how proximate cause is going to be proven, provide a basis for the trial court to conclude that [Plaintiffs’] claims have merit, and inform [the hospital] of the conduct [Plaintiffs] call into question” (citations omitted). In short, the majority determined that the report put the hospital on notice of the elements of Plaintiffs’ claim. The trial court thus abused its discretion by granting the hospital’s motion to dismiss.
Justice Wise filed a dissenting opinion in which he argued that because the report did not identify “what different treatment a hospitalist or internal medicine specialist would have provided to [Plaintiff] if the hospital had made one available sooner . . . this failure amounts to an analytical gap in the report such that the report does not sufficiently explain causation.” Justice Wise cited several appellate decisions holding as inadequate similar reports that failed to explain how a hypothetical specialist’s treatment would have been different or led to a different outcome. As Justice Wise put it, “[h]ere, the report does not identify when the hospital should have assigned another physician to [Plaintiff’s] care nor explain what steps the physician should have taken to address the complications from his surgery more quickly.” Consequently, the report does not provide a fair summary of the claim or show proximate cause.
We think Justice Wise is right. From what we can tell, the alleged negligence in this case has nothing to do with the treatment Plaintiff actually received from the attending surgeon and the hospital. Instead, the claim is based entirely on the hypothetical that if the hospital had brought in a hospitalist sooner, Plaintiff would have gotten better sooner. This hypothetical begs a lot of questions: how much sooner? what would a hospitalist had done differently based on Plaintiff’s condition? what exactly “caused” the complications to begin with (there doesn’t appear to be an allegation that the surgeon was negligent, for example)? what did the attending doctor and hospital do that a hospitalist wouldn’t have done? at what point in time? How does a health care provider defend itself against an argument that some other provider would have done a better job if the “expert” doesn’t explain what a “better job” would have entailed?
