Texas Supreme Court Rules on the Expert Report Requirement for Medical Malpractice Suits

Potts v. Certified EMS, 2013 WL 561471 (Tex.)
Presbyterian Hospital of Denton v. Moreno, 2013 WL 1366028 (Tex.)

Earlier this month, the Supreme Court of Texas delivered a precedential decision, Potts v. Certified EMS, 2013 WL 561471 (Tex.), that clarified the statutory requirement for an expert report that plaintiffs suing doctors for malpractice must submit in advance of trial. This decision has a nationwide significance, as Texas’s expert-report requirement parallels similar requirements that exist in other states.

The decision resolved an issue that frequently arises in medical malpractice litigation: Does the expert’s report need to cover each and every theory of liability alleged against the defendant? The Court ruled that the report only needs to substantiate one of multiple liability theories to allow the entire suit to proceed to trial. To see how this threshold standard works, consider a patient complaining that her doctor negligently delayed her surgery and then erred in performing the surgery and in delivering postsurgical care. To proceed to trial, this patient will have to submit an expert report that verifies one of her three complaints. Subsequently, the patient will have to decide whether she wants to pursue her outstanding complaints against the doctor. If she decides to pursue those complaints, she would need to produce additional expert testimony at her trial. The patient, however, is not required to substantiate these complaints ahead of trial by adducing an expert report.

The Court’s ruling makes perfect sense. The requirement that plaintiffs advance their expert reports serves a dual purpose. First, it helps courts separate between medical malpractice suits that potentially have merit and those that do not. Relatedly, this requirement forces a plaintiff to reveal at an early stage of the proceeding whether he evaluates his suit as meritorious. Plaintiffs evaluating their suits as meritorious will upfront their investment in the expert testimony. Plaintiffs whose suits are speculative or frivolous will hesitate to do so.

This rationale explains why it is enough for a plaintiff’s medical expert to verify only one liability theory out of many. As the Texas Supreme Court explains, this verification identifies the plaintiff’s suit as potentially meritorious. Later on, if the plaintiff decides to pursue all of his liability theories, he might need to adduce additional expert testimony. The plaintiff, however, need not commit himself to this trial strategy – and incur the additional cost of engaging a medical expert – at the outset of the proceeding.

This decision strikes a good balance between patients’ access to justice and doctors’ interest not to be exposed to unmeritorious malpractice suits.

Roughly at the same time, the Supreme Court of Texas decided Presbyterian Hospital of Denton v. Moreno, 2013 WL 1366028 (Tex.) – a case featuring vaginal delivery of twins, one of whom suffered blood loss and a hypoxic-ischemic insult that damaged his nervous system and kidneys. The plaintiff submitted to court (with some delays, for which she was excused) expert reports that came from an obstetrician-gynecologist, a pediatric nephrologist, and a pediatric neurologist. The ob-gyn’s report identified the defendants’ malpractice: a decision to deliver the twins vaginally rather than by a C-section. The nephrologist’s report explained that “asphyxia during the birth process caused the baby’s kidney injury.” The neurologist’s report attested that “the hypoxic-ischemic event during the labor and delivery process caused the baby’s brain injury.”

The defendant argued that none of those reports covers the plaintiff’s allegations of malpractice, damage, and causation, but this argument failed. The Texas Supreme Court found it inconsequential. Specifically, it ruled that plaintiffs can combine several expert reports to verify their malpractice allegations against doctors.

This ruling is unquestionably correct as well.