In a case that demonstrates the fine line between an adequate and inadequate expert report in a health care liability claim, the 14th Court of Appeals has affirmed the trial court’s rejection of the defendant health care providers’ objections to a plaintiff’s expert’s qualifications and opinion of causation and denial of the providers’ motion to dismiss.
In Charlise Gunderson, M.D. and Coastal Eye Associates, P.L.L.C. v. Maurace Wade, Individually and On Behalf Of J.W., A Minor, and Latoya Walker (N0. 14-20-00795-CV), plaintiffs sued an ophthalmologist (Dr. Gunderson) and her practice for negligently failing to diagnose their son’s brain tumor during eye examinations prior to strabismus surgery. About eight months after the surgery, the minor’s pediatrician sent him to the emergency room for persistent headaches and vomiting. A CT scan showed the presence of a ganglioglioma, a slow-growing tumor. As a result of surgery to remove the tumor, the minor lost one-quarter of his visual field in each eye.
Plaintiffs served the defendants with an expert report and CV pursuant to §74.351, CPRC, by a practicing ophthalmologist with surgical experience, including strabismus surgery. The expert opined that Dr. Gunderson violated the applicable standard of care for failing to perform a complete eye examination prior to surgery, including dilation of both pupils and a complete fundal exam. Had the complete exam been performed, Dr. Gunderson would have seen the tumor and referred the minor for surgery while the tumor was small enough to avoid damaging the minor’s vision. Defendants objected to the report on the basis that the expert was not qualified to render an opinion on treatment of gangliogliomas and that his opinion on causation was speculative and conclusory and moved to dismiss. The trial court overruled the objections and denied the motion to dismiss. Defendants appealed.
The court of appeals affirmed, holding that the trial court did not abuse its discretion. It first found that the plaintiff’s expert, a practicing ophthalmologist with experience in the type of eye surgery at issue in the case, had the necessary “knowledge, skill, experience, training, or education” to give an opinion regarding the standard of care for diagnosing and treating strabismus (see Tex. R. Evid. 702—qualification of experts). Having determined the qualifications of the expert, the court of appeals turned to the question of whether the expert was qualified to opine on causation. Defendants argued that an eye doctor is not qualified to testify about brain tumors, their rates of growth, treatment options, and the success or failure to surgery at different points in time. Rejecting this argument, the court of appeals emphasized that the expert report focused on the failure of the defendant ophthalmologist to adhere to the standard of care governing eye examinations, not the treatment of brain tumors. Thus the trial court could reasonably have concluded that the expert was qualified to testify about injuries caused by such failure and did not abuse its discretion in overruling the defendants’ objection.
With regard to the substance of the expert’s opinion—that the negligent failure to perform a complete eye examination resulted in an eight-month delay in diagnosing the tumor, which ultimately caused the injury—the court of appeals likened this case to Naderi v. Ratnarajah, 572 S.W.3d 773 (Tex. App.—Houston [14thDist.] 2019, no pet.). In Naderi the court determined that an expert report opining that a dentist’s failure to diagnose and treat an abscess on one of the plaintiff’s teeth at an early stage ultimately led to a spreading infection that could only be treated by resection of the plaintiff’s mandible. Here the court similarly determined that the expert’s opinion that Dr. Gunderson’s failure to perform the eye exam, which would have revealed the presence of the tumor, allowed the tumor to grow to the point that its removal damaged the plaintiff’s vision. As the court of appeals put it, “the report ‘draws a line directly from [the defendant’s] breach of the standard of care, to the delay of diagnosis and treatment, and thence to the ultimate injury’” (quoting Memorial Hermann Health System v. Heinzen, 584 S.W.3d 902, 922 (Tex. App.—Houston [14th Dist.] 2019, no pet.)). This “direct line” analysis “constitutes a good-faith effort to explain, factually, how proximate cause is going to be proven in this case.”
Finally, the defendants argued that the plaintiff’s expert did not show causation because he “did not explain when the tumor developed, its rate of growth, what structures if encroached on at different stages of its growth, or how the surgery would have been performed at an earlier date so as to avoid damaging [the minor’s] visual fields.” In the absence of this information, defendants maintained, Dr. Gunderson’s alleged breach of the standard of care could not be causally linked to the treatment of the brain tumor. The court of appeals disagreed, citing the expert’s reliance on the relevant medical records to reach the conclusion that, within reasonable medical probability, the minor’s tumor was present when Dr. Gunderson treated him and she didn’t see it because she didn’t perform a complete exam.
Section 74.351 requires an expert report to provide a fair summary of (1) the applicable standards of care, (2) the manner in which the care rendered failed to meet those standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. As this case demonstrates, evaluating adequacy—which can be determined only from the four corners of the expert’s report—can turn on a relatively minute distinction between a report that one court has deemed “conclusory” and a similar one that another court has blessed. This is about as high-stakes a poker game as any in the civil justice system, since a non-compliant report kills the case. For this reason, each appellate decision adds another important layer of jurisprudence in this area. That’s why we report on these cases when we see them—they literally show the 2003 reforms in action. They also remind us of the importance of electing the best qualified judges to our trial and appellate courts.
