Texas SC sees growing problem with inadequate expert reports

By Steve Korris | Jan 28, 2009

Texas Supreme Court

AUSTIN – To the frustration of the Supreme Court of Texas, a state law requiring an expert report after the filing of a medical malpractice suit is increasingly rewarding weak reports.

On Jan. 23, all nine justices allowed a malpractice suit to proceed even though five of them found the expert report deficient and two others protested that it didn't exist at all.

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

Justice Don Willett, even crankier in concurring, wrote, "This is no more an expert report than my son's tricycle is a Harley."

He wrote that the law sets up a situation of, "Heads I win, tails you lose."

In an unusual step, Johnson and Willet did not join the majority opinion that Justice Scott Brister delivered.

Brister hinted that Dr. Mary Louise Watkins appealed the wrong half of a two part order from the 13th District appeals court in Corpus Christi.

Now Watkins must defend herself against a claim of Gary Jones that she splashed acid into one of his eyes while treating a lesion on his face.

Jones sued Watkins in Cameron County district court. Under Texas law, he had to serve an expert report within 120 days.

Jones served it but Watkins declared it deficient. She moved to dismiss, claiming the report provided none of the elements the law required.

The law allows a 30 day extension to cure deficiencies, so Jones asked for 30 days.

At a hearing District Judge Migdalia Lopez trashed the report.

"It's just a narrative," she said. "It's not an expert's report as to the standard of care as required by the statute at all, not even close."

Still, she granted the extension. Instead of ruling that it wasn't a report, she ruled that it was a deficient report.

Jones filed a new report, and Lopez denied the motion to dismiss.
Watkins appealed the extension at the 13th District and filed a companion petition for a writ of mandamus dismissing the case.

The appeals court ruled for Jones, two to one.

"Watkins fails to mention that Jones did comply with the trial court and produced an amended report within 30 days of the hearing," Chief Justice Rogelio Valdez wrote.

He and Justice Nelda Rodriguez dismissed the appeal outright for lack of jurisdiction. They accepted jurisdiction of mandamus relief, but they denied the relief.

Justice Errlinda Castillo dissented, arguing that Lopez had no discretion but to dismiss.

"The narrative did not contain any of the statutory elements and, thus, does not constitute a good faith effort to comply with the statutory requirements," she wrote.

"Absent an expert report, there is no deficiency to cure," she wrote.

On appeal to the Supreme Court, Watkins challenged the denial of mandamus relief but didn't challenge the decision to dismiss her appeal.

That choice wrecked her case. Willet and Johnson would have overturned the decision to dismiss the appeal, and Brister apparently wished he could have overturned it.

Brister wrote that she asked the court only to order the case dismissed. "We hold that we cannot," he wrote.

Willet called the choice a "procedural hurdle that prevents us from reaching the marquee 'no report vs. deficient report' issue."

He wrote that the issue is "at once recurring and elusive."

He recalled his prediction in an early case that a report so deficient it didn't count as any report at all would be a rare bird.

He recalled a later case with another sighting of that rare bird.

"Such rare bird sightings, it turns out, are becoming commonplace," he wrote.

He wrote that the 13th District opinion is "already being cited as precedent for the notion that bare bones material like this, however devoid of the statutory elements, can avert dismissal."

He wrote that claimants can argue, "Heads I win (no interlocutory appeal) and tails you lose (no mandamus relief)."

In a conclusion befitting the late Johnny Cochran, Willet wrote, "If a report is missing, not just amiss, courts are remiss if they do not dismiss."

David Joe represented Jones. Ronald Hole and Ida Cecilia Garza represented Watkins.

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