Supreme Court rules expert opinion sufficient in medical malpractice suit, overturns dismissal

By Elizabeth Alt | Feb 19, 2018

AUSTIN – In an opinion delivered Feb. 2, the Texas Supreme Court overturned the dismissal of a woman’s medical malpractice lawsuit after it was dismissed by a court of appeals on the grounds that her expert report was deficient.

AUSTIN – In an opinion delivered Feb. 2, the Texas Supreme Court overturned the dismissal of a woman’s medical malpractice lawsuit after it was dismissed by a court of appeals on the grounds that her expert report was deficient.

The Supreme Court found that the medical expert’s report was sufficient under Texas Medical Liability Act and remanded the case to trial court.

Justice Debra Lehman noted in the court opinion that “the trial court abused its discretion in concluding Dr. (Steven) Chalfin’s expert report does not represent a good-faith effort to meet the Medical Liability Act’s requirements and in dismissing (Barbara) Baty’s health care liability claims.”

Lehman wrote the court opinion overturning the trial and appellate court decisions with Justice Nathan Hecht, Justice Paul Green, Justice Eva Guzman, Justice Jeffrey Boyd and Justice John Devine concurring. Justice Phil Johnson and Justice Jeff Brown dissented in a separate opinion.

Baty filed a medical malpractice lawsuit against the anesthesiologist and certified registered nurse Olga Futrell, who performed her anesthesia, and her employer, Complete Anesthesia Care, P.C. Baty alleged that she suffered vision loss and permanent nerve damage after she had cataract surgery on her left eye. The complaint states that after the first attempt to anesthetize failed, Futrell did not correctly perform the second retrobulbar block, the procedure where anesthesia is injected into the space behind the globe of the eye, and hit her optical nerve, which caused permanent nerve damage and vision loss.

Baty provided a report from a medical expert Dr. Chalfin as evidence that the alleged negligent acts of the anesthesiologist caused the injuries. Chalfin’s report said that all the facts indicated that Baty “suffered an injury to the left optic nerve during the retrobulbar block administered by Olga Futrell, CRNA,” and detailed specifics to how the anesthesiology had gone wrong.

Futrell and CAC filed a motion to dismiss, arguing that Dr. Chalfin’s report did not have enough specific information to meet the Supreme Court standard to outline what “an ordinarily prudent CRNA’s duties” would be in this instance, and what he should have done differently but did not.

The trial court agreed and dismissed Baty’s claim. Baty appealed, and the Court of Appeals for the 10th District of Texas affirmed the lower court decision stating that Chalfin’s report failed to “'specify what actions, procedures, or treatment was either required or should have been performed or provided by Futrell while administering the retrobulbar block'” in order to avoid inserting a needle into the optic nerve.”

Reversing the lower courts’ decision, Lehman stated that the report adequately explains that Futrell breached the standard of care by “sticking [the left optic nerve] with the retrobulbar needle” during the administration of the retrobulbar block…. the report represents a good-faith effort to summarize the causal relationship between Futrell’s failure to meet the applicable standard of care and Baty’s injury.”

Lehman went on to note that the expert report was specific, and highlighted alternative methods of a second retrobulbar block and the possible problems with the method Futrell used.

“The report expressly references the specific conduct the plaintiff has called into question…viewing the report at issue here in its entirety, we agree with Baty that the standard of care described by Dr. Chalfin encompasses a more specific directive.”

Johnson dissented in a separate opinion, along with Brown. Justice Johnson disagreed with the Supreme Court majority and stated he believed the trial court was correct in finding the report deficient. 

“Dr. Chalfin's report did not do what this court has said over and over is required: set out the standard of care for how the procedure should have been done, or not done, and explain how the defendant’s actions did not meet that standard.”

Johnson went on to say that “the Standard of Care section of Dr. Chalfin’s report offers only generalized conclusory opinions...All it says, in substance, is don’t have a bad result by sticking the optic nerve."

The case has been remanded back to trial court for further proceedings.

Texas Supreme Court case number 16-0164

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