Expert reports should be just that

The SE Texas Record Jan. 31, 2009, 1:41am

Even the best laws can have loopholes.

The Texas Supreme Court hopes our courts will soon close one that threatens the efficacy of our 2003 medical malpractice lawsuit reform.

At issue is the "expert report" that must be filed with every civil lawsuit alleging misdeeds by a Texas doctor. The report hurdle is supposed to stop frivolous filers and extortionate quick settlements, keeping litigation costs low by staying discovery until an accuser can prove the case has some medical merit.

It turns out that some recent reports haven't been very expert at all.

"It's just a narrative," said District Judge Migdalia Lopez, describing a supposed expert report filed in her Cameron County courtroom. "It's not an expert's report as to the standard of care as required by the statute at all, not even close."

But Lopez didn't dismiss the case outright. She declared the report deficient, rather than non-existent, offering plaintiff Gary Jones 30 days to show the court a better one.

Defendant Dr. Mary Louise Watkins protested, and the case recently worked its way to the High Court in Austin.

State Supreme Court justices were even less impressed by Jones' purported expert.

"The report before us does not purport to have any relationship to a health care liability or malpractice case," Justice Phil Johnson wrote.

"This is no more an expert report than my son's tricycle is a Harley," added Justice Don Willett.

When a plaintiff tries to represent any "health care related document" as the required statutory report, the case should be dismissed, Willet says, for fear of setting a precedent in conflict with the law.

The Jones case is "already being cited as precedent for the notion that bare bones material like this, however devoid of the statutory elements, can avert dismissal," Willet said.

Willet wants lower court members of the bench--such as Judge Lopez--to take a harder line on such reports in the future.

We agree. There always are that handful of plaintiffs and lawyers hoping to sneak around the spirit of laws they don't like. We elect our judges to keep these folks in check, not appease them.

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