Expert Testimony on Causation

THN Physicians Association v. Tiscareno, — S.W.3d — ((Tex.App.–El Paso 2016), 2016 WL 4379432

This is a very useful decision summarizing the requirements for causation expert opinions in medical malpractice cases.

As an initial matter, the court noticed that “In medical malpractice cases, “plaintiffs are required to adduce evidence of a ‘reasonable medical probability’ or ‘reasonable probability’ that their injuries were caused by the negligence of one or more defendants, meaning simply that it is ‘more likely than not’ that the ultimate harm or condition resulted from such negligence.” (citing Jelinek v. Casas, 328 S.W.3d 526, 532–33 (Tex. 2010) and Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex. 1993)).

The “reasonable medical probability” standard (also identified as “substantial factor”) still doesn’t validate “statements based on reasonable medical probability, without explanation and without tying the conclusions to the facts.” (citing Jelinek, id., at 539). Instead, “the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented.” (citing Jelinek, id., at 539–40. Thus, as the same court previously ruled, “While a claimant is not required to conclusively prove her case through a preliminary expert report, the report may not merely state conclusions about any of the elements.” Castillo v. August, 248 S.W.3d 874, 883 (Tex.App.–El Paso 2008).

Furthermore, “the report may not have an analytical gap or a missing link between the expert’s allegation that the physician defendant breached the standard of care and the plaintiff’s injuries.” (citing Clark v. HCA, Inc., 210 S.W.3d 1, 11 (Tex.App.–El Paso 2005). According to the court, “The adequacy standard … is simple: we determine whether the expert report constitutes a fair summary of the issues at play, a summary that includes an articulable, complete, and plausible explanation of how the alleged breach led to the damages sustained.” (citations omitted).

For example, “in cases where a patient presents with a preexisting condition, such as an infectious disease that has been brewing for some time, the expert report must provide an adequate explanation regarding how any delay in providing treatment was a substantial factor in causing harm the patient.”

Importantly, as the court noted as well, “The level of detail required in an expert report must be determined on a case-by-case basis, and will necessarily vary depending, in part, on the complexity of the case.”