The Texas Supreme Court has granted review of a Fort Worth Court of Appeals decision dismissing a health care liability claim against an Arlington hospital based on an inadequate expert report.
Jared Bush, Jr. v. Colombia Medical Center of Arlington Subsidiary, L.P. d/b/a Medical City Arlington and HCA Inc.(No. 23-0460; pet. granted June 21, 2024) arose from the death of a 35-year-old female from a pulmonary embolism. In February 2018 she fainted and was taken to the hospital, where an emergency room physician charted a primary impression that she suffered a heart attack. She was admitted, and a cardiologist performed a heart catheterization that indicated minor atherosclerotic heart disease. She was discharged the following day in a stable cardiac condition with a two-week followup. Three days later, she returned to the hospital by ambulance in severe respiratory distress and unresponsive. She died later that day. An autopsy revealed a massive pulmonary thromboemboli, which was listed as the cause of death. Her husband, individually and on behalf of the couple’s minor children, sued her three treating physicians and their practice groups, as well as the hospital and HCA. He timely served an expert report prepared by a cardiologist. The hospital objected to the report and moved to dismiss under § 74.351(b), CPRC. The trial court overruled the objection. The hospital filed an interlocutory appeal.
In an opinion by Justice Kerr, the court of appeals reversed and remanded to the trial court for a determination of whether Plaintiff should be granted a 30-day extension to cure inadequacies in the report (JB I; No. 02-20-00190-CV; November 24, 2021). The hospital argued that Plaintiff’s expert, a board-certified specialist in cardiovascular medicine, was not qualified by education, training, or background to render an opinion about the standard of care applicable to a hospital or about causation. The court agreed, though it observed that the Dallas Court of Appeals had reached the opposite conclusion with respect to the same expert in another case, Decker v. Colombia Med. Ctr. of Plano, Subsidiary, L.P. (No. 05-19-01508-CV; October 15, 2020, pet. denied). Applying its own precedent, however, the court determined that although the expert “certainly knows how to treat cardiology patients as a clinician, his report and CV do not show that he has the requisite familiarity with or experience in developing, implementing, and enforcing hospital policies and procedures.” The problem with the report, the court opined, was that the expert “does not describe or connect the dots between clinical pathways he has developed and the ‘triple rule out’ protocol for which he advocates in this case—or even whether his work has been in the context of developing administrative, hospital-specific policies and procedures.” Neither his report nor his CV, moreover, describe any significant experience in hospital administration, though he had plenty of experience as a physician-in-chief in hospital settings. As the expert did not establish his qualifications, his report could not therefore establish causation, either. Specifically, the expert alleged that the hospital’s failure to implement and enforce a “triple rule-out” protocol for identifying and treating decedent’s embolism caused her death. Observing that a hospital cannot practice medicine, i.e., diagnosing and treating illness, the court concluded that Plaintiff’s expert did not opine as to what the hospital could have done differently when faced with the treating physician’s diagnosis and treatment.
On remand, the trial court granted a 30-day extension to cure the report. Plaintiff served an amended report. Once again, the hospital objected and moved to dismiss. Once again, the trial court overruled the motion, and the hospital sought review. In an opinion by Justice Wallach (JB II, No. 02-22-00319-CV; April 20, 2023) the court of appeals once again reversed. The hospital argued that the amended report did not cure the deficiencies regarding causation, which again alleged that the hospital’s failure to implement and enforce a “triple rule-out” protocol caused decedent’s death. Again, the court determined that the report did not explain how a different hospital policy or protocol could be enforced against a physician exercising independent medical judgment about the diagnosis and treatment of a patient. More specifically, the court went on, the report, which called for additional lab work and imaging to rule out a pulmonary embolism, did not explain who should order those tests, interpret them, and implement a treatment plan if not the physicians who were already treating the patient. The expert thus assumed that simply having a prescribed protocol in place would somehow be self-enforcing as to independent medical professionals.
It is a very interesting development that SCOTX has decided to review this case. We imagine that the existence of conflicting opinions on the same expert from the Fort Worth and Dallas courts has something to do with it. Based on our reading of the two opinions, the Fort Worth court got it right both times. In both opinions, the court emphasizes that in a direct liability claim against the hospital, as presented here, a physician, no matter how experienced in clinical practice, is not an administrator responsible for developing, implementing, and enforcing hospital procedures and protocols. And with regard to the issue of the appropriate protocol (here the “triple rule-out” protocol), the court quite rightly points out that diagnosis and treatment has to be done by a physician regardless of “protocol.” Even if the “triple rule-out” policy had existed in this case, who could have compelled the physician to follow it? A nurse? The hospital’s lawyer? It’s one thing to argue that the physician should have known better (as plaintiff undoubtedly did in his action against the doctors); it’s quite another to hold a non-physician responsible for a quintessentially medical decision to treat a patient a certain way.
