Michael Todd Kosar, Individually and as Independent Administrator for the Estate of Betty Kosar, Deceased; Cristianos G. Lopez; Genevieve R. Lopez; and Sebastian Rodriguez v. KPA-Consolidation, d/b/a Kingwood Medical Center (No. 14-22-00911-CV; April 16, 2024) arose from an unsuccessful laparoscopic sleeve gastrectomy and hiatal hernia repair procedure that resulted in the death of Betty Kosar from gastric perforation, diffuse massive peritonitis, intra-abdominal abcess, and anoxic brain injury. Plaintiffs sued several defendants, alleging negligence and that Kingwood violated federal law by allowing Kosar to be transferred to another hospital while still medically unstable. Plaintiffs served an expert report prepared by a physician, to which Defendant timely objected. Plaintiffs filed a second report beyond the 120-day period. Defendant again filed an objection, which the trial court sustained and then gave Plaintiffs a 30-day extension to cure. When Plaintiffs did not serve a new report, Defendant moved to dismiss under § 74.351, CPRC. The trial court granted the motion, and several months later awarded Defendant attorney’s fees and costs. Plaintiff appealed, but the court of appeals dismissed for lack of jurisdiction (§ 74.351(b) does not authorize an interlocutory appeals from motions to dismiss and for attorney’s fees). The case went back to the trial court, which severed Plaintiffs’ claims against Kingwood from those against the other defendants. The trial court again dismissed those claims for failure to comply with § 74.351.
In an opinion by Justice Zimmerer, the court of appeals reversed and remanded, holding that the trial court abused its discretion by granting Kingwood’s motion to dismiss for an inadequate report. The basic thrust of Plaintiffs’ expert report was that Betty’s condition deterioriated during her three-hour wait for transfer from Kingwood to Memorial Hermann, where surgery to repair gastric perforation sustained 10 days earlier during her laprascopic sleeve gastrectormy could be performed. During this three-hour period, the ER doctor did not check on her condition. By the time Betty was placed into an ambulance for transfer, she had developed hypotension and a high pulse rate. During the transfer, her condition worsened, and she suffered cardiac arrest. The paramedics revived her. She underwent surgery at Memorial, in which three liters of pus were drained and “massive” sepsis was discovered. She later died from sepsis and multi-organ failure. Plaintiffs’ expert concluded that Kingwood failed to adhere to the standard of care, which calls for a timely transfer, monitoring of the patient’s condition while awaiting transfer, and re-evaluating the patient’s condition to determine whether the patient is stable enough to transfer. The expert further opined that Kingwood’s breach of the standard of care proximately caused Betty’s death.
Kingwood objected neither to the expert’s credentials or his statement of the applicable standard of care, thus waiving any objection to that part of the opinion. Kingwood did object to the expert’s opinion that Kingwood breached the standard and that the breach proximately caused the harm. Specifically, Kingwood blamed the decisions of the on-call surgeon, over which it had no control. The court dismissed this argument on the basis that, for purposes of determining the adequacy of the expert report, the “legal relationship between a doctor and a hospital is not relevant and therefore not a valid objection” (citations omitted). Kingwood argued further that the expert report contradicted itself by stating that Kingwood failed to treat Betty within its capacity and also that the transfer was delayed, creating an ambiguity about how Kingwood breached the standard of care. The court rejected this approach as well, holding that reading the expert report as a whole, it complained that Kingwood neither treated the patient within its capacity nor promptly transferred her. Finally, as to causation, the court held that the expert specifically linked the alleged breaches to Betty’s deteriorating condition and subsequent death from sepsis shock. The trial court thus abused its discretion by granting Kingwood’s motion to dismiss.
