The Houston [1st] Court of Appeals has concluded that a trial court order granting a 30-day extension to allow a health care liability claimant to cure deficiencies in her expert report was proper as to two defendants but improper as to a third.
Methodist Hospital d/b/a Houston Methodist Hospital, Hemangshu Podder, MD, and Okechukwu Okidi, MD; Lifegift Organ Donation Center; K2 Holistic Health Care Services, Inc. and Jane Ogle, RN (Incorrectly Names Nurse Jane); Texas Children’s Hospital; Baylor College of Medicine v. Tammy Garner, Individually and as the Surviving Mother of Decedent J.G., a Minor (No. 01-24-00674-CV; April 24, 2025) arose from a health care liability claim involving the death of a minor and the subsequent disfigurement of the minor’s remains during an organ donation procedure when the draping caught fire in the operating room. Plaintiff filed wrongful death, negligence, negligent handling of a corpse, negligent credentialing, and other claims against Defendants. Methodist, Dr. Podder, and Dr. Okiki timely objected to Plaintiff’s medical report and filed a Chapter 74 motion to dismiss. The trial court granted Plaintiff a 30-day extension to cure deficiencies in the report. Defendants sought interlocutory relief.
In an opinion by Justice Dokupil, the court of appeals reversed as Dr. Okidi but determined it had no jurisdiction as to Methodist and Dr. Podder. (The court dismissed the appeals of the nurse and K2 for want of prosecution and granted motions for voluntary dismissal filed by LifeGift, Texas Children’s, and Baylor.) Defendants argued that Plaintiff’s expert report constituted “no report,” and, consequently, the trial court erred by granting the extension. The court agreed with Dr. Okidi, who argued that the report, which did not name him, amounted to no report at all. The report did not identify him as part of any surgical team, although it did identify other physicians. In the absence of some indication that Dr. Okidi was present in the operating room within the four corners of the report, the report did not implicate him, and the trial court erred by denying his motion to dismiss. The court thus determined it had jurisdiction as to Dr. Okidi and dismissed him from the case.
With respect to Dr. Podder, whom the report did identify, Plaintiff’s expert opined that he did not adhere to the standard of care regarding fire prevention in the operating room. The surgical report did not document any discussion of preventative measures, such as reducing the risk of an air leak [from decedent’s uncuffed tracheostomy tube] during the procurement operation. At the same time, the report neither identified the source of the standard of care (it merely referred to the “Joint Commission” without specifying what that was) or how the expert’s knowledge, skill, and experience qualified her to offer an opinion on the standard (though her CV indicated that she was qualified in surgery and organ transplantation). It also failed to specify how an alleged failure to communicate among the surgical staff caused the injury, as well as to specify how Dr. Podder breached the standard of care and caused the fire. The court, however, found that despite these deficiencies, the report included an opinion of an individual with expertise as to the merit of Plaintiff’s claim and implicated Dr. Podder as one of the providers present in the operating room. Under these circumstances, the court determined that the trial court had discretion to grant the extension and that it had no jurisdiction over Dr. Podder’s interlocutory appeal.
The same went for Plaintiff’s vicarious liability claim against Methodist Hospital. Although deficient, the report’s adequacy as to Dr. Podder, a Methodist employee, was likewise adequate as to Methodist for jurisdictional purposes. “When a health care liability claim against a defendant health care provider is based on vicarious liability,” the court observed, “an expert report that meets the statutory standards as to the defendant health care provider’s employee is sufficient to implicate the health care provider’s conduct” (citations omitted). Consequently, the court ruled that it had no jurisdiction over Methodist’s interlocutory appeal, either.
