The Texas Supreme Court has reversed a sharply divided en banc opinion by the Fort Worth Court of Appeals holding that a medical malpractice plaintiff’s expert report did not meet the “fair summary” standard of §74.351, CPRC. The Court remanded to the trial court for further proceedings.

E.D., a minor by and through her parents B.O. and D.D., as next friends v. Texas Health Care, P.L.L.C. and Timothy J. Jones, D.O. (No. 20-0657) arose from a severe brain injury suffered by a newborn prior to her delivery by emergency C-section. Plaintiffs sued the physician, his practice, the nurse, and the hospital for negligence and timely served an expert report by an obstetrician/gynecologist. The physician objected to the report, arguing that it failed to show a breach of the standard of care and was “conclusory, speculative, and disconnected from the underlying facts.” The trial court denied the physician’s motion to dismiss, but the Fort Worth Court of Appeals, on rehearing before an en banc court, reversed and remanded.

In a per curiam opinion, SCOTX held that the trial court did not abuse its discretion and that the report “reflects a good-faith effort to provide a fair summary” [citing Baty v. Futtrell, 543 S.W.3d 689,693 (Tex. 2018)]. The Court’s analysis of the plaintiffs’ expert found that the report, which focused on the failure of the physician to adequately communicate with the nurse who monitored the fetal heart rate, “construed as a whole, adequately (1) describes the standard of care as effective communication and close monitoring of the fetal heart rate; (2) identifies [the physician’s] breach as failure to timely and accurately evaluate the fetal heart-tracing markers, either personally or by making appropriate inquiries of the attending nurse; and (3) explains that the failure to do so resulted in [the physician] ordering a STAT delivery too late to avoid injury.” The Court criticized the court of appeals for improperly considering the credibility of the expert and failing to construe the report as a whole, concentrating instead on only one part of the report to deduce the applicable standard of care. The report thus fairly and in good faith summarized the “how and why” the physician’s breach of the standard led to the injury.

This opinion is corrective in nature and should not be viewed as departing from any previously decided cases construing §74.351. But it does remind us of the fine line that sometimes has to be drawn between a compliant and non-compliant expert report.

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