With two opinions issued within two months of each other, the Texas Supreme Court again altered the terrain for determining sufficiency of Chapter 74 medical expert reports. After the Court appeared to strictly construe the statutory requirements for the causation element in Zamarripa, the Court in these opinions appears to relax some of the statutory requirements. At the least, these opinions send mixed signals regarding what constitutes an adequate expert report.
First, in a per curiam opinion in Miller v. JSC Lake Highlands Operations, L.P., 536 S.W.3d 510 (Tex. 2017), the Court held that courts must read all proffered expert reports together, even if the cause-of-death expert does not link his opinions to any of the defendants. Then, in Baty v. Futrell, No. 16-0164, 2018 WL 665456 (Tex., Feb. 2, 2018), a 6-2 majority of the Court held that an expert’s opinion on the standard of care element was adequate when read in light of other portions of the report.
Recall that the Court in Columbia Valley Healthcare System, L.P. v. Zamarripa, 526 S.W.3d 453 (Tex. 2017), held that the “causal relationship” that the expert must describe in the report should include the same elements of proximate cause required to be shown at trial: cause-in-fact and foreseeability. Id. at 460. The expert does not have to use any “magical words” but “must make a good faith effort to explain, factually, how proximate cause is going to be proven.” Id.
In Miller, issued just a few months later, the Court held that a physician’s cause-of-death expert report, when read together with three other reports, was sufficient. Miller, 536 S.W.3d at 513-14. The Court so held, even though the cause-of-death expert did not name any of the three defendants, did not discuss any of the defendants’ care, and did not attempt to causally link any of the three defendants’ conduct to the death. The Court said the cause-of-death expert did not need to specifically name the person(s) who caused the delay because the other expert reports supplied that information. Id. at 514.
The Court criticized the court of appeals for “contradicting” the statute’s explicit authorization of the use of multiple expert reports and declining to read all the reports together. Id. The Court also criticized the court of appeals for failing to “credit the entirety” of the other experts’ reports. 515.
The Court then addressed the reports applicable to each defendant, concluding they were adequate to explain “how and why” each defendant’s alleged breach of a standard of care was a proximate cause of the patient’s death. Id. at 515-17 (citing Zamarripa and Palacios, among others). Ultimately, the Court held the trial court could have reasonably determined—based on the four reports read together—that the claim had merit and, thus, did not abuse its discretion in denying the defendants’ motions to dismiss. See id. The Court re-emphasized its statement from Palacios that expert reports do not have to meet the same standards as summary judgment evidence, and the Court appeared to embrace the trial court’s discretion to review expert reports and make that first determination of whether they demonstrate a good-faith effort to show the claim had merit. Id. at 517 (citing Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 144 (Tex. 2015) (per curiam)).
As a side note, the Court also criticized the court of appeals for questioning the “believability” of one of the expert’s standard of care opinions, rather than taking them at face value at the expert report stage. Id. at 516. The Court said: “At this preliminary stage, whether those standards appear reasonable is not relevant to the analysis of whether the expert’s opinion constitutes a good-faith effort.” Id. at 516-17.
Two months later, in Baty, a 6-2 majority of the Court (with Justice Lehrmann writing) reversed both the court of appeals’ opinion and the trial court’s ruling granting the defendants’ motions to dismiss. The Court appeared far less mindful of the abuse of discretion standard of review and, in fact, gave little or no deference to any determination the trial court made in deciding the supplemental expert report did not contain enough information for him to conclude the claim had merit.
Baty involved a claim for eye injury when the initial anesthesia for cataract surgery did not work and the defendant CRNA had to augment the anesthesia. The expert’s supplemental report was divided into sections discussing the expert’s qualifications, the records reviewed, the medical care provided, the standards of care, the alleged breaches, and causation. The standard of care opinion at issue stated: The standard of care for an ordinarily prudent CRNA administering a retrobulbar block requires administering the block in the proper manner to preclude injuring the delicate structures of the orbit, including the globe and optic nerve. Baty, 2018 WL 665456 at *4. The defendants argued that merely stating the procedure should be performed in the “proper manner” to avoid injury, without more explanation, was conclusory.
In concluding the standard of care opinion was adequate when read in conjunction with the entire report, the Court relied on the breach opinion (irreparably damaging the optic nerve during the administration of the retrobulbar block by sticking it with the retrobulbar needle) and a statement in the “summary of medical care” section (many ophthalmic surgeons augment an inadequate block by using a blunt cannula inserted via conjunctival incision, rather than a needle). Id. at *5. Although this latter statement admittedly did not include CRNAs (and no surgeon was a defendant), the Court said the statement was “significant” for recognizing that less risky alternatives existed. Id. at *7 n.9. This reference to an alternative method “provides some indication of what [the CRNA] should have done differently.” Id. at *7.
The Court again criticized a court of appeals, this time for requiring more detail to support a standard of care opinion than was required “at this stage of the proceedings.” Id. at *6, *7. The Court also noted that the standard of care in the report would not be binding on the CRNA defendant at trial, but it was sufficient to satisfy the good-faith effort the statute requires. Id.
Justice Johnson, joined by Justice Brown, dissented. Admitting the Court had set the bar low for expert reports, he noted that “even a low bar must be cleared.” Id. at *8 (Johnson, J., dissenting). In his opinion, the standard of care opinion was conclusory, and the trial court did not abuse its discretion in granting the motions to dismiss.
Johnson stated that the standard of care opinion merely said, “do no harm.” Id. at *9. The expert never explained how to perform the retrobulbar block procedure, other than to state the desired result should not be a needle stick to the optic nerve. Id. “In the proper manner” simply does not say how the CRNA should or should not have performed the procedure. Id.
Johnson believed the majority had to “cobble together three statements from different sections of the report to support its conclusion, even though the report does not say that two of the three statements fix the standard” of care. Id. In Johnson’s opinion, the majority effectively holds the trial court abused its discretion by taking the report at face value. Id. He disagreed that a trial court abuses its discretion by reading an expert report to say what the expert says. Id.
For the report to set out the “proper manner” to perform the block, the expert needed to explain “both what should have been done and how it should have been done.” Id. at *10. This is what is required by both Jelinek and Palacios. Id. Merely stating the desired result (don’t stick the optic nerve with a needle) is not sufficient. Id. at *10-11.
Justice Johnson would hold that the trial court did not abuse its discretion, and the Court of Appeals properly analyzed the record and applied the law.