Texas Appeals Court Tosses Malpractice Case Over Defective Expert Report
November 1, 2025 7 minutes read
By Damian D. Capozzola, Esq., and Jamie Terrence, RN
News
A Texas appellate court has thrown out a surgical “foreign object” malpractice suit after concluding the plaintiff’s expert report failed to comply with the Texas Medical Liability Act. The Fourth Court of Appeals held that the plaintiff’s report did not implicate the specific physician alleged to be negligent and therefore amounted to “no report” as to that doctor. The court reversed the trial court’s order denying dismissal and remanded the case with instructions to dismiss the claims against the physician with prejudice and award fees and costs — as the statute requires.
The ruling turns on a basic, but often outcome-determinative point: Under Texas law, a medical malpractice expert report must, within its four corners, set out the applicable standard of care, explain how that defendant breached it, and link the breach to the patient’s injury. A report that speaks only about “the hospital” or “its employees” without tying the alleged failures to the physician defendant does not satisfy the Act. The court refused to fill gaps or infer what the expert likely meant, stressing that judges cannot supply missing analysis or assumptions to rescue a deficient filing.
Background
The plaintiff underwent a cesarean delivery at a Texas hospital. About three months later, she presented to a different facility with severe abdominal pain. A computed tomography scan revealed a retained foreign object, gauze or other textile material, inside her abdomen. She required two additional surgeries for removal, irrigation and drainage, and to resect perforations of the small intestine. She sued the delivering obstetrician, his professional association, the hospital, and another physician, alleging negligence in failing to adhere to basic sponge/instrument counting protocols before closing her incision.
Texas law requires a claimant to serve each healthcare defendant with a timely expert report that fairly summarizes the defendant-specific standard of care, how the defendant’s care fell short, and how that breach caused the harm. The plaintiff served a report from an expert obstetrician. In the sections of the report concerning standards, breach, and causation, the expert criticized the hospital, through its employees, for failing to conduct a proper count and inspection, and framed the duty as one owed by “a reasonable institution.” The report did not articulate a physician-specific standard or identify how the defending physician personally breached it or caused injury.
The physician moved to dismiss the case, arguing the report was legally inadequate because it failed to state his applicable standard of care, explain his breach, and link his breach to the injuries. He emphasized that the only analysis concerned the hospital’s staff and institutional duties. The trial court found the report inadequate but denied dismissal, granting a 30-day extension to amend. The physician appealed.
The appellate court applied settled rules. An expert report in a medical malpractice case must inform the defendant of the specific conduct called into question and provide a basis to conclude the claim has merit. It must be defendant-specific, and courts are confined to the four corners of the report, so they may not draw inferences to fill in gaps. Collective assertions that “hospital staff” failed are insufficient to implicate a physician. The panel concluded the expert’s background section merely mentioned the physician performed the cesarean delivery. However, the operative analysis criticized only the hospital through its employees and “the institution.” That failure to connect the dots to the physician meant the report was, legally, no report as to him. The court also rejected reliance on res ipsa loquitur (the thing speaks for itself). Even if that evidentiary doctrine might allow a jury to infer negligence at trial in a retained sponge case, it does not excuse the statutory expert report requirement at the outset of litigation.
What This Means for You
Expert reports are not optional formalities. They are critical filings that can end a case. Texas, like many jurisdictions, screens medical malpractice suits with front-end expert report requirements. The report must, within its four corners, identify the standard of care for each defendant, describe how each breached it, and explain how and why that breach caused the injury. If any of those elements are missing with regard to a particular defendant, the statute treats that as a failure to serve a compliant report on that defendant, triggering dismissal with prejudice and fee shifting. The appellate court reinforced two bedrock points. First, defendant specificity matters. A narrative about “the hospital” or “its staff” does not automatically implicate an individual physician. Second, courts examine only the four corners of the report. They do not infer what the expert “meant” or “intended.” If the report fails to inform the physician what he or she allegedly did wrong and why it caused harm, it is not a good faith effort under the Texas statute.
Courts will not fill gaps or do a plaintiff any favors, even if they have a sympathetic case. The panel’s opinion is explicit that judges are precluded from filling gaps or guessing at the expert’s intended application to a particular defendant. As the panel noted, the law “prevents us from inferring” that references to the hospital “through its employees” include the physician who performed the procedure. The expert must say so, lay out the physician’s standard, identify the breach, and tie it causally to the injury. The report either does the work, or the claim is dismissed.
For plaintiffs, the practical takeaway is straightforward. You must treat the expert report as a mini brief that addresses each defendant separately. Avoid collective assertions, such as that the defendants failed to count sponges. Plaintiffs must specify what the physician had to do, where the departure occurred, and how and why that departure caused the outcome. If there are multiple defendants, an analysis must be done for each one. A hospital only critique will not salvage claims against a physician. Retained-object cases, like a sponge left after surgery, often look like classic res ipsa loquitur situations, which is Latin for “the thing speaks for itself.” The doctrine lets a jury infer negligence from the event itself when an injury ordinarily does not occur absent negligence and the instrumentality was within the defendant’s control. The plaintiff leaned on res ipsa loquitur here as a potential shortcut. If negligence can be inferred at trial from the mere fact a foreign object was left behind, perhaps a detailed, defendant-specific expert report was not necessary at the outset. The court rejected that move. It explained that res ipsa loquitur is an evidentiary rule for trial, not a pass around Texas’s front-end screening requirement under the Medical Liability Act. Even if res ipsa loquitur might obviate expert testimony at trial in some cases, it does not eliminate the statutory obligation to serve a compliant expert report on each defendant.
For defendants, this decision is a reminder to scrutinize the scope and specificity of the plaintiff’s report within the 120-day window. If the report does not implicate a specific defendant’s conduct, the defendant should move to dismiss and argue the filing is “no report” as to them. Framing it as “no report” also is important. When a trial court both denies dismissal and grants an extension, labeling the filing “no report” preserves a defendant’s right to an interlocutory appeal, whereas mere deficiencies generally are not immediately appealable. Here, the appellate court accepted jurisdiction because the report failed to implicate the physician at all.
While requirements vary, many states employ front-end screening devices, such as expert affidavits, certificates of merit, or reports, to weed out unsupported claims. Texas is on the stricter end in that its statute is defendant-specific, time-limited, and backed by a strong dismissal remedy. Regardless of forum, the safest approach is to assume courts will demand clarity: a defendant-specific standard of care, the breach of that standard, and a causation analysis, tied to the actual facts, authored by a qualified expert. The appellate court’s message is clear that precision matters. If an expert report faults only “the hospital” and never explains what the physician did wrong and why it mattered, the statute treats it as no report against the physician, and the case ends there. Courts will not backfill missing analysis, and res ipsa loquitur will not save a noncompliant filing. Plaintiffs must carry the burden at the outset with a tight, defendant-specific report. Defendants should challenge any opening promptly and frame deficiencies as “no report” to preserve immediate review. This decision is both a procedural roadmap and a reminder that, in Texas malpractice litigation, the expert report often is where cases are won or lost.
Finally, from a process perspective, note that the process of keeping a precise record of every object that is placed temporarily or permanently in the body during any surgical or other type of procedure always has been a complex challenge for surgical technicians, nurses, and surgeons. During the procedures, there are many safety steps that staff use to maintain control of the process. It involves counting instruments and sponges going in and on removal. Confirmation of a correct count must take place before the surgeon can close the incision or end a procedure. If a count is incorrect at the conclusion of surgery, there are multiple steps the surgeon must then take to find the missing object from sweeping the wound manually to calling for radiological assistance to search for the missing object. On the rare occasion when the object cannot be found, the patient is advised and continued care provided to monitor the patient for potentially damaging events caused by the retained object. But this entire process of prevention, detection, and recovery of a retained foreign object is the physician or surgeon’s responsibility. He or she must assure that the staff are aware of the number and types of objects being used and receive confirmation from them that each one of those objects has been removed before closure. An assumption of that violates the standard of care.
Damian D. Capozzola, Esq., The Law Offices of Damian D. Capozzola, Los Angeles
Jamie Terrence, RN, President and Founder, Healthcare Risk Services, Former Director of Risk Management Services (2004-2013), California Hospital Medical Center, Los Angeles
Reference
- Decided on Sept. 10, 2025, in the Fourth Court of Appeals, San Antonio, TX, Case No. 04-24-00733-CV.
A Texas appellate court has thrown out a surgical “foreign object” malpractice suit after concluding the plaintiff’s expert report failed to comply with the Texas Medical Liability Act. The Fourth Court of Appeals held that the plaintiff’s report did not implicate the specific physician alleged to be negligent and therefore amounted to “no report” as to that doctor. The court reversed the trial court’s order denying dismissal and remanded the case with instructions to dismiss the claims against the physician with prejudice and award fees and costs — as the statute requires.
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