By 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
News: Recently, a Texas appellate court affirmed the dismissal of a plaintiff’s medical malpractice action after she failed to comply with Texas procedural rules. In April 2021, the plaintiff sued a physician and hospital for medical malpractice, alleging a delay in diagnosing her rectal cancer despite what she alleged were obvious symptoms. She claimed that the delay resulted in the cancer advancing far beyond what it should have, required more complex procedures, and caused her severe distress and permanent injuries. After the trial court found her expert report deficient, it gave her the opportunity to file a new one during a hearing.
Because the trial court never issued a written ruling reflecting its order, and because the plaintiff’s attorney never requested a written report, the trial court found that the new expert report the plaintiff eventually filed was not timely. On appeal, the appellate court agreed that the plaintiff’s written report was not timely because no written ruling allowing her to file the amended report was ever issued by the trial court. The result may seem harsh for the plaintiff, but the case underscores the importance of adhering to procedural requirements for medical malpractice attorneys, and it serves as a reminder for healthcare providers and physicians that they should be careful to retain knowledgeable counsel who know how to defend a case not only on the merits, but procedurally as well.
Background: In April 2021, the plaintiff filed a medical malpractice lawsuit against a physician and hospital, alleging that the physician failed to diagnose her rectal cancer in a timely manner. She alleged that she had symptoms of rectal bleeding, pain, and fecal incontinence, but that the physician did not perform a thorough digital rectal examination or sigmoidoscopy/proctoscopy, which led to a significant delay in diagnosing her rectal cancer. The plaintiff claimed that it was only after six months, when another doctor properly diagnosed her, that the cancer was identified. By this time, the tumor had progressed significantly, perforating within a month of diagnosis and requiring additional, more complex medical procedures, which she claimed would not have been required if an earlier diagnosis had been made. She claimed that she endured severe physical and mental distress because of the delay and sustained permanent injuries.
After filing her lawsuit, the plaintiff served an expert report as required under Texas law. The expert report claimed that the physician’s failure to perform diagnostic procedures caused a six-month delay in diagnosing the plaintiff’s rectal cancer, leading to significant disease progression and complications. The physician objected to the report, arguing that it was conclusory and lacked a detailed explanation of causation that tied his actions to her injury.
The trial court agreed with the physician’s objections to the expert report after holding a hearing, and it granted the defendants’ motion to dismiss the case. However, the trial court orally granted the plaintiff a 30-day extension to file an amended report, but no written order was issued regarding the extension, and the plaintiff did not file an amended report for several months. As a result, the defendants filed a second motion to dismiss in April 2022, which was followed by a third motion to dismiss after the plaintiff finally served an amended report in March 2023. The trial court ultimately dismissed the plaintiff’s claims with prejudice, citing the untimeliness and continued inadequacy of her new expert report.
The plaintiff appealed the dismissal of her case on several grounds. She first argued that the trial court made an error by not signing a written order to give her a 30-day extension to file an amended expert report. She argued that it was insufficient for the trial court judge to simply give the order verbally in court. The appellate court gave her no leniency. It stated that a written order is required to begin the extension period, but that the plaintiff failed to preserve this issue because she did not request or obtain a written order, nor did she address the need for one until several months later.
In addition to the procedural blunder, the appellate court also reviewed the merits of the plaintiff’s original expert report. The plaintiff contended that the trial court erred by determining that the plaintiff’s original expert report was deficient. The appellate court, however, agreed with the trial court here as well. It noted that the report failed to explain how and why the delay in diagnosis caused the perforation of the tumor and resulting complications. The report provided conclusory statements without sufficient detail, and as a result, the plaintiff could not show that the alleged failures of the physician was the cause of her injuries.
What this means for you: The appellate court affirmed the trial court’s judgment, dismissing the plaintiff’s medical malpractice claims with prejudice, meaning that she has no opportunity to refile her case. This case highlights the critical importance for plaintiffs in medical malpractice suits to provide detailed and timely expert reports that meet statutory requirements.
Texas law requires plaintiffs in medical malpractice cases to serve an expert report outlining the standard of care, breach, and causation. This is necessary in every malpractice case in Texas, and jurisdictions around the country have similar requirements for an expert report. Accordingly, expert reports are the subject of considerable time and attention of plaintiffs and their attorneys, especially because it is common for the defendant healthcare providers to challenge the admissibility of these expert reports — as happened in this case. Here, the defendant physician challenged the expert report of the plaintiff on the grounds that it did not do a sufficient job in showing that the delays the plaintiff complained of caused her injuries. The trial court agreed, and the plaintiff’s expert report was deemed deficient because it lacked detailed explanations of causation. It failed to adequately explain how the delayed diagnosis directly caused the tumor to perforate and resulted in additional procedures. This deficiency underscores the necessity for expert reports to go beyond mere conclusions and offer a clear, evidence-based explanation of how a breach in the standard of care directly caused the patient’s injury. Without showing causation, the plaintiff could not prove her case under Texas law.
When a trial court finds that a plaintiff’s expert report is deficient, plaintiffs often are given additional opportunities to file new or amended reports and correct any deficiencies. That occurred here. The trial court gave a verbal order during a hearing that the plaintiff had 30 days to file an amended report. The plaintiff’s attorney accepted this oral grant without further action to secure a written order, believing that the oral pronouncement sufficed to start the extension period. After the plaintiff failed to file an amended report within the 30-day window, the defendants asked the court to dismiss the lawsuit on the grounds that she failed to serve an adequate expert report within the stipulated timeframe. Although the plaintiff eventually filed an amended report much later, the defendants argued that, without a written order, the 30-day extension was never officially initiated, making the delayed filing grounds for dismissal.
The plaintiff argued that, under Texas law, a written order was necessary to kick off the 30-day period. She claimed that, because the trial court never issued that written order, instead issuing only a verbal one during the hearing, the 30-day window never truly began, and her report was timely. Both the trial court and appellate court rejected this argument and explained that it was up to the plaintiff’s attorney to ask the trial court for a written order. They blamed the plaintiff for a lack of reasonable diligence in obtaining a written order.
The healthcare provider and physician were able to take advantage of not only the plaintiff’s deficient reports on the merits but also the plaintiff’s lack of diligence in obtaining a written order. It is critical to review and understand the procedural requirements for medical malpractice actions to know whether you are in compliance with them and when your opponent is not. Even what appear at first glance to be minor procedural deficiencies, such as a verbal order from the judge rather than a written one, can spell the end of a case. Regularly reviewing the applicable procedural rules, as the healthcare provider and physician’s attorneys clearly did and which the plaintiff’s attorney did not, can mean the difference between having to settle a medical malpractice action for a substantial sum or having the court dismiss the case in your favor. The plaintiff’s case here was ended with finality: She cannot refile it in Texas or anywhere else. If there is any relief for her left, she will likely have to get it from her attorney through a possible legal malpractice action.
The case also is important in what it means for attorneys in the medical malpractice field to understand the relevant case law. The result may seem harsh for the plaintiff, but the appellate court noted in its decision that previous case law already made clear that a written order is required. Even if the plaintiff’s attorney thought it was reasonable to rely on a written order under the rules, her attorney could have known better by reviewing the legal precedent. Her attorney did not have to rely only on a review of the procedural rules because, as the appellate court pointed out, this issue of having to obtain a written order has been litigated before.
The focus in medical malpractice litigation often is on the merits: whether the healthcare provider could have liability, whether the plaintiff’s expert has sufficiently made the case for causation, the extent of the plaintiff’s injuries, and more. But the procedural complexities can matter just as much. That was the case here. Healthcare providers and physicians must ensure that they hire competent counsel so that they can take advantage of any opportunities to attack on both the merits and the procedure. Licensed independent healthcare professionals pay a great deal to insurance providers for liability coverage. Having experienced representation is well worth the cost. Healthcare providers must be certain that they are protected by the best malpractice defense and seek evidence to substantiate that claim.
Reference
- Decided on July 16, 2024, in the Texas Court of Appeals for the Fourteenth District, Case No. 14-23-00418-CV.
Recently, a Texas appellate court affirmed the dismissal of a plaintiff’s medical malpractice action after she failed to comply with Texas procedural rules.
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