Patricia Martin v. Methodist Health Centers d/b/a Houston Methodist Willowbrook and Diego C. Marines Copado, M.D. (No.14-23-00418-CV; filed July 16, 2024) arose from a medical malpractice claim based on the physician’s failure to timely diagnose rectal cancer, which eventually resulted in a perforated tumor. Plaintiff served an expert report opining that had the physician diagnosed the patient in a timely manner after appearing to have the telltale symptoms of rectal cancer, her tumor would not have grown and subsequent complications would not have occurred. Defendants objected that the report was conclusory and failed to show causation. They moved to dismiss under section 74.351, and after a hearing, the trial court ruled that the report was inadequate. The trial court granted Plaintiff’s motion for a 30-day extension to address inadequacies in the report. However, after the 30-day deadline expired, a new report had not been submitted, and Defendants filed a new motion to dismiss. Plaintiff argued that since she had not received a written order granting the extension, the 30-day clock never started. The trial court agreed and issued a written order. But Plaintiff did not serve a new report until 10 months later. This time the trial court dismissed the case. Plaintiff appealed.
In an opinion by Justice Bourliot, the court of appeals affirmed. First, the court held that according to its own precedent in Lopez v. Brown, 356 S.W.3d 599 (Tex. App.—Houston [14th] Dist. 2011, no pet.), a written order extending the time for filing an expert report under § 74.351 is required in order to start the clock running. In this case, however, Plaintiff’s counsel made no attempt to obtain a written order for more than a year after the court orally granted it. The court of appeals thus concluded that Plaintiff failed to preserve her objection to the failure of the trial court to put its order in writing. Round one to Defendants.
In Round 2, Plaintiff contended that the trial court erred in finding her original report inadequate. Here the court affirmed the trial court’s determination that the report was conclusory on the issue of causation because it failed to explain how a six-month delay in diagnosing Plaintiff’s tumor actually caused the tumor to perforate when it did. Noting that subsequent diagnosis and treatment did not prevent the tumor from perforating, the court also took issue with Plaintiff’s expert’s failure to explain precisely what the perforation was and how early detection would have prevented the injury or the subsequent complications. Round 2 to the Defendants.
One wonders why Plaintiff’s counsel handled the case this way. If the strategy was to delay the inevitable by not asking for a written order extending the deadline, that strategy clearly did not impress the court of appeals. It also appeared that the trial court bent over backwards to allow Plaintiff to serve a compliant report. Perhaps, though, no compliant report was possible in this case, so Plaintiff was in no rush to move the case along. But then, why appeal it when the procedural missteps were so glaring?
TCJL Intern Hannah Greer provided the research for this article.
