Sharp's Texas Med Mal Update:

Since 1998 we have published and distributed free to clients, judges, and risk management executives the "Sharp's Texas Med Mal Update", a monthly newsletter of the previous thirty days' Texas Supreme and Appellate Court decisions on medical malpractice and related cases. Please feel free to browse the most recent 12 newsletters below.

The case summary contained in these newsletters is not meant to be a comprehensive discussion of the details of the case, but rather a brief outline of one or more of the more important legal principles illustrated by the decision. Please read the case report itself and obtain appropriate legal consultation as needed.

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For full-text opinion or further discussion, please contact William J. Sharp,
William J. Sharp & Associates, 3701 Kirby Dr., Ste. 850, Houston, TX 77098,
(713) 529 2400 voice, (713) 529 2426 fax

Board Certified, Personal Injury Trial Law, Texas Board of Legal Specialization

The commentary below is not legal advice and is not intended to create
an attorney-client relationship with the reader or ultimate consumer.
© 1998-2010 William J. Sharp. All Rights Reserved.

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February 10

Expert not allowed to guess about defendant’s impairment. Plaintiff cut his arm and was treated by defendant ER doctor.  It was discovered soon after that there was a retained piece of glass in the wound. Plaintiff claimed on appeal that the trial court erred in excluding evidence of defendant’s alleged cocaine abuse at the time of treatment. Specifically, plaintiff had offered evidence from his expert witness who said that he could “extrapolate” (from the doctor’s admission that was abusing cocaine at that general time and the events in the ER) that the defendant must have been on cocaine at the time of the treatment. Judgment for defendant affirmed. Without any explanation of the expert’s methodology, his conclusion about drug use was merely his ipse dixit about one possible cause for the alleged malpractice,and it  was within the trial court’s discretion to exclude it. Fitzpatrick v. Watson, Tyler, 1/29/10

Report untimely, reversed and dismissed. Plaintiffs filed their report after the expiration of 120 days from  filing of the petition, but the trial court denied dismissal for hospital, CRNA and doctor. On appeal, plaintiffs argued that the reason for their delay was that the case was abated, due to plaintiffs’ failure to file the required medical records authorization and a defendant’s invocation of that abatement. Held, rev’d and remanded for assessment of fees. The plaintiffs may not benefit by failing to file the authorization and thus obtain additional time to file the expert report. Constitutionality challenges were also denied. Gulf Coast Medical Center v. Temple, Corpus Christi,  1/21/10

January 10

Expert physical medicine doctor qualified as to orthopedist. The plaintiff sued her orthopedic surgeon alleging misdiagnosis of a broken ankle as a torn ACL. She alleged unnecessary ACL surgery and the improper healing of the ankle leading to “complex regional pain syndrome.” Plaintiff filed the report of an internist who practiced physical medicine and rehabilitation. Defendant unsuccessfully moved to dismiss on the grounds, inter alia, that the expert was not qualified. Motion was denied; affirmed in part on appeal. The fact that the rehab doctor had treated orthopedic patients and pain syndrome patients made him qualified to opine about the standard of care on the missed diagnosis. Remanded for consideration of  a 30 day extension on the related issue of the expert’s inadequate report on the causation element of plaintiff’s claims. Foster v. Richardson, Dallas, 12/21/09

Expert opinion adequately address two doctors with same name. Plaintiff sued for the death of a patient from internal bleeding. The patient was treated by two different doctors both with the last name “Bismar”. The medical record was apparently unclear, containing notes by “Dr. Bismar” without further identification. Plaintiff’s expert opined that all of the defendant physicians had the same duty to stop the bleeding and  “did nothing” to stop it. Defendant moved to dismiss claiming that the report inadequately described the standards applicable to the individual defendants and  that it was inaccurate because the movant Dr. Bismar had in fact taken some steps to stop the bleeding. The  motion to dismiss was denied and this was affirmed on appeal. The expert witness is permitted to globally state the standard of care as to the several physician defendants when he makes it clear that the standard applies to each. Bismar v. Morehead, Fort Worth, 12/10/09

December 09

Report deadline tolled during defendant’s delay in answering. Defendant failed to timely file an answer; held, the 120 days for filing the report is extended by the number of days the defendant fails to timely file an appearance, relying upon the supreme court’s opinion in Gardner v. U.S. Imaging. Further held, the appellate court had no jurisdiction over the appeal since the trial court had granted a 30 day extension to correct deficiencies in the report at the time it denied the motion to dismiss. Morris v. Umberson, Hou(1st), 11/5/09

Doctor cannot be re-named after dismissal under the TTCA. Under the TTCA the plaintiff sued both the doctor and the state subdivision hospital. Plaintiff later dismissed as to the doctor, and sued only as to the state hospital. When defendant moved to dismiss remaining claim against the state, plaintiff tried unsuccessfully to amend to name the doctor again. Held, dismissal affirmed. The Tort Claims Statute (CPRC §101.106) is designed to relieve the physician from participation in the suit by substituting the state subdivision in his stead under certain circumstances (here, use of tangible objects). The physician may not be named again once he has been dismissed.  Hintz v. Lally, Hou (14th), 11/19/09

Plaintiffs are separate “claimants” for purposes of assigning contrib percentages. Trial court foundthat plaintiff parents’ cumulative contributory negligence percentages exceeded 50%, and thus ruled that they take nothing in their wrongful death and survival claims against the doctor for the death of their child. On appeal, plaintiffs argued that they were each separate “claimants” making pooling of their contrib percentages improper. Defendant argued that under Drilex there is but one “claimant”, comprised of all parties plaintiff, and thus the pooling was proper. Held, reversed and remanded. The appellate court distinguished the definition of “claimant” for settlement credit purposes as discussed in Drilex with  the definition that should be used in the context of contrib claims.  The dissent would have affirmed on this point. Salinas v. Kristensen, Corpus Christi, 11/25/09

Bankruptcy Code can extend the med mal statute of limitations. Section 108 of the Bankruptcy Code gives the trustee additional time to bring actions on behalf of the estate. In this case the trustee brought the action outside of the Texas med-mal statute of limitations of 2 years, and defendant physicians obtained summary judgment. Held, rev’d and remanded. The federal statute preempts the state statute despite section 74.251(a)'s "notwithstanding any other law" language to accomplish the purpose of allowing the bankruptcy trustee to pursue such litigation. Tow v. Pagano, Hou(1st), 11/5/09.


November 09

EMTALA, Negligence, and Expert Reports: Plaintiff’s cause of action against physicians and hospital involved claims of negligent treatment and failure to stabilize ER patient pursuant to EMTALA. Complex opinion discusses the interplay of these theories and the expert report requirement, ultimately concluding that the reports were inadequate as to the negligence claims but satisfied Chapter 74 as to the EMTALA claims. Tenet Hospitals v. Boada, El Paso, 10/21/09

Anesthesiologist qualified as to General Surgeon: The plaintiff’s anesthesiologist expert was qualified to provide expert report as to general surgeon's standard of care for positioning and padding of a patient during cardiac procedures. Barber v. Mercer, Fort Worth, 10/15/09


Internist qualified to opine as to Nephrologist: Defendant nephrologist unsuccessfully moved to dismiss based on lack of qualifications of expert. The expert internist said he had experience prescribing prednisone for many varied conditions. Held, the trial court did not abuse its discretion in finding him qualified to opinion about the standard of care for prescribing it to treat a kidney disease known as “focal segmental glomerulosclerosis (FSGS)”. The expert did not state that he had familiarity with this condition. Quinones v. Pin, Dallas, 10/13/09

October 09

Expert qualified because he consulted with surgeons. Defendant successfully struck the testimony of Dr. Barrash based on the fact that he had not performed surgery for several years due to an arm injury, and his methodology was unsound. Held, reversed. He was qualified to opine on the standard of care and causation because he consulted with other surgeons who were performing the surgery. His methodology was sound, based on his description of the differential diagnosis of the cause of plaintiff’s injury and elimination of all causes but negligence by review of films and records. On review of the no-evidence MSJ, the court found no conflict existed between the plaintiff’s expert witness’s admission in his deposition that he could not identify a negligent act of defendant based on the records, and his later affidavit stating the defendant must have “banged” the nerve. Held, rev’d and remanded.  St. Clair v. Alexander, Corpus Christi, 9/30/09

Inadequate causation opinions. The plaintiff filed two  reports, one from a family practice doctor and one from a nurse. The f.p. doctor’s opinion on causation did not discuss how the patient’s fall (in which she sustained a broken leg requiring surgery) caused her death from congestive heart failure. The nurse was not qualified to opine on medical causation. The case was remanded for consideration of whether additional time would be allowed for supplemental reports. Nexion Health v. Judalet, Tyler, 9/23/09

Plaintiff’s expert physician was not shown to have expertise in the standards applicable to hospital nurse. Defendant appealed denial of motion to dismiss based on inadequate qualifications of plaintiff’s expert. In this case involving nurse’s allegedly negligent administration of narcotics post-op, the plaintiff’s expert did not establish his expertise in the standards of care for nurses following physicians’ orders in administering narcotics. Held, rev’d and remanded. Methodist Hospital v. Kimbrell, Amarillo, 9/29/09

September 09

Splitting health care cause of action narrowly approved by supreme court. Plaintiff sued after slipping on part of a hospital bed he claimed was improperly assembled. Claims against the hospital for failure to properly train its staff and provide a safe environment were held to be “health care claims” requiring an expert report, while the claims of negligent assembly of the bed were ordinary negligence claims. Due to failure to produce report the former were dismissed. Dissents would have characterized the negligent assembly claims as health care claims, also; these dissents contain an interesting discussion highlighting the difficulty in demarcating health care from incidental provision of services in a health care setting. Marks v. St. Luke’s Episcopal Hospital, S.Ct., 8/28/09

Expert may not rely on hypothetical assumptions in report. Expert’s report (second one, after 30 day extension obtained) offered its opinions based on hypothetical assumptions about what the hospital personnel may have done regarding issuance of discharge instructions, and failed to name any specific employees who may have committed these hypothetical acts or explain how they may have caused the harm. Held, the report was insufficient, dismissal ordered with remand for assessment of attorneys fees. Christus-Spohn Hosp. v. Trammell, Corpus Christi, 8/13/09

August 09

TC must articulate reasons for setting aside verdict. After a full jury trial on a medical malpractice case the trial court set aside the verdict citing only the “interests of justice”. Held, rev’d and remanded. The Supreme Court, noting the Texas Constitution’s protection of the right to jury trial, required that “trial courts must give more explanation than ‘in the interest of justice’ for setting aside a jury verdict ...” In re: Columbia Medical Center, S.Ct., 7/3/09

Defendant may appeal denial of dismissal after final nonsuit by plaintiff. Defendant lost his motion to dismiss but did not pursue interlocutory appeal. Plaintiff later non-suited, and defendant appealed the final order of nonsuit seeking reversal on the dismissal and an award of attorneys fees. Theappellate court denied based on lack of jurisdiction, but the Supreme Court reversed. Held, because the plain language of the statute says an interlocutory appeal "may" be taken from an order denying a challenge to an expert report, an interlocutory appeal is permitted but not mandated. Failure to seek it does not waive the right to appeal the dismissal. Hernandez v. Ebrom, S.Ct., 7/3/09

Defendant “incurs” fees, not insurer. The trial court denied the defendant recovery of attorneys fees on his dismissal because counsel stipulated that the insurer incurred the fees on behalf of the doctor. Held, rev’d. The defendant “incurs” the fees and thus may recover them, since Texas is not a “direct-action” state. Aviles v. Aguirre, S. Ct., 7/3/09

July 09

Defense counsel may interview treating physicians when investigating the case. Plaintiff obtained trial court order prohibiting defense counsel from interviewing treating physicians, in contravention of TRCE 509 and the CPRC §74.052 authorization. Defendant mandamused. Held, rev’d. Defendant’s counsel may interview the treating physicians under the cited rule and statute. HIPAA does not “preempt” either provision. Plaintiff is not entitled to a blanket prohibition of such contact, but instead must show a  particular, specific, and demonstrable injury from the potential divulgence of irrelevant information. The court seemed to allow plaintiffs, however, to self-determine what information is “irrelevant” and therefore “privileged” under subsection C of the authorization.  In re: Collins, S.Ct., 6/5/09

Trial court must instruct on “loss of chance”. Patients sued hospital over 11-month delayed notification to her of her cancer diagnosis on pathology reports. Jury verdict was for the plaintiff, and the hospital appealed. Held, rev’d and remanded. The treating physicians’ failure to follow up on path reports and advise patient of findings was not a “new and independent cause” of injury which could relieve hospital of culpability. Hospital was entitled to “loss of chance of survival” instruction; merely allowing counsel to explain the law to the jury was insufficient.The trial court also failed to instruct the jury that it could not hold the hospital responsible for the acts of the pathologist, who was an independent contractor.  These failures to so instruct required reversal. Columbia Rio Grande v. Hawley, S.Ct., 6/5/09

Medical malpractice claims need not be severed. Plaintiff was injured in an automobile accident and brought in one suit tort claims against the drunk driver, breach of contract claims against the insurance carrier,  and malpractice claims against one of her treating physicians. The physician moved to sever the malpractice claims from the other claims, which was denied by the trial court. The physician sought mandamus relief. Held, aff’d. The appellate court noted that the trial court had great discretion in severance matters, and that “the close temporal proximity of the moments when the defendants allegedly injured Woods, the high degree to which these claims involve the same facts and issues, and the interwoven proof of damages could have (when factored together) prompted the trial court to conclude that a unitary proceeding against the multiple alleged tortfeasors was necessary”. The court expressed concern about the possibility of inconsistent verdicts either absolving all defendants while blaming the respective “empty chairs” or making duplicate awards against the defendants in separate proceedings. In re: Liu, Texarkana, 6/10/09

June 09

All discovery must be stayed during expert report appeal. Plaintiff attempted to depose defendants during pendency of hospital defendant’s appeal of denial of motion to dismiss for inadequate expert report. The trial court ordered the depositions to go forward. Hospital defendant mandamused. Held, mandamus would issue. Sec.74.351 and cases interpreting it require that no discovery proceed until after the appellate court determines adequacy of an expert report when there is a pending appeal. The policy of the statute would be offended by the multiplicity of depositions and expense if discovery took place while an appeal was pending. In re: Lumsden, Hou (14), 5/21/09

Nephrologist qualifed as to Family Practitioner treating a patient with renal disease. Plaintiff produced the report of a nephrologist regarding the defendant family practitioner’s treatment of a swollen knee with Indomethacin, harming the patient’s already diseased kidneys. Defendant moved unsuccessfully to dismiss both for failure of the Ch. 74 report due to the witness’s lack of qualifications, and under the TTCA for failure to sue the institution. Held, aff’d. The trial court did not abuse its discretion in holding that the plaintiff’s expert was qualified to testify regarding the prescribing of Indomethacin to a patient with a history of renal disease. Furthermore, because the written prescription did not constitute a use of tangible property, sovereign immunity was not waived, and the case could not have been brought against the governmental entity/hospital district. Leonard v. Glenn, San Antonio, 5/20/09

Cannot nonsuit to avoid motion to dismiss. Plaintiff failed to timely serve the expert report then non-suited to avoid dismissal. Defendant moved to dismiss after that nonsuit, but within the trial court’s continued plenary power. Defendant’s motion to dismiss/for sanctions was denied and defendant appealed. Held,“sanctions authorized under the MLIIA remain available following a voluntary nonsuit filed after the expert deadline”. Remanded for trial court consideration of the motion for sanctions. Crites v. Collins, S.Ct., 5/15/09

Report may contain the c.v. The trial court concluded that the failure of the pro-se plaintiff to file a curriculum vita with the report precluded consideration by the court  of the plaintiff’s request for a 30 day extension of time. The court granted the motion and awarded fees and costs. Held, rev’d and remanded. The report may itself contain the “c.v.” by virtue of its description of the expert’s qualifications, thus, the trial court could have granted the 30 day extension to supplement the report and, thus, the c.v. Johnson v. Willens, Beaumont,  5/14/09

Summary Judgment on independent contractor relationship affirmed. This case report contains a fact-intensive and thorough examination of the issues surrounding allegations that a physician was an employee rather than an independent contractor for the purpose of establishing respondeat superior liability. No new ground is trod, but most of the related issues and types of evidence are discussed, making this a valuable opinion. The appellate court affirmed the trial court granting of summary judgment in the defendant physician’s favor. Farlow  v. Harris Methodist Hospital, Fort Worth, 5/7/09

May 09

Can’t recast med mal as other cause of action to avoid expert report. Plaintiff’s case was dismissed for failure to file the report. Plaintiff argued that her cause of action was not a healthcare liability claim; the court affirmed that it was since plaintiff claimed negligence of UTMB regarding an elderly patient’s fall from a hospital bed. An agreed docket control order did not extend the report deadline, but only extended the testifying expert designation deadline. Shelton v. UTMB, Hou(14th), 4/14/09

Allegation of independent acts of negligence required to trigger report requirement as to practice group. Defendant appealed denial of motion to dismiss, claiming that plaintiff was required to file a report when the allegations against the practice group were both vicarious liability for the acts of the physician and “direct liability” of the practice group. Examination of the allegations revealed that they were all of vicarious liability, and no “independent negligence” of the group was alleged, thus, no report specific to the group was required. Denial of dismissal affirmed. Obstetrical & Gynecological Assocs. v. McCoy, Hou(14th), 4/9/09

April 09

Dismissal under TTCA upheld. Plaintiff’s suit against University of Texas Health Science System and its employee resident was dismissed because plaintiff sued both the school and the employee, thus “electing” to pursue the school under TRCS 101.106(a). Plaintiff appealed claiming the resident was not an employee since her checks were from a U.T.-affiliated “Foundation.” Held, aff’d. There was no evidence that the resident was under the employ of anything but the U.T. Health Science Center, and she testified she was paid by the University of Texas. Kamel v. Sotelo, Hou(1st), 3/26/09

Laser hair removal not medical treatment. Plaintiff went to the “Texas Southwest Medical Aesthetic Clinique” to have hair removal by laser. The R.N. working there burned her and she sued the clinic for negligence. She also sued the owner (a physician) alleging vicarious liability. He moved to dismiss when no expert report was filed. His motion was denied and he appealed. Held, aff’d, because the nature of plaintiff’s claim is not a health care liability claim. Although in her petition plaintiff called the procedure a “treatment” (a word used in the report statute) she did not otherwise plead this as a medical negligence case; the court examined dictionary definitions of “treatment” and found that it did not necessarily imply a “medical” context. The facts that the treatment took place at a medical clinic, using a regulated medicaldevice, were further unpersuasive to the court. The court relied further on appellate decisions outside of Texas that held laser hair removal not to be a medical procedure, and recent Texas legislative action regarding laser hair removal. Tesoro v. Alvarez, Corpus Christi, 3/12/09

Service of report required even if difficult. TC was reversed and dismissal ordered when plaintiff failed to serve doctor with the report within 120 days. Plaintiff complained that the doctor had been impossible to find and serve due  to his having moved several times, been suspended from practicing medicine, etc. She argued that the statute was unconstitutional in requiring service under these circumstances. Held, rev’d and remanded for dismissal. Although the doctor may have been difficult to locate in a timely manner, the statute requires service in 120 days, and since he was not “impossible” to find there was no “open courts” violation. Offenbach v. Stockton, Dallas, 3/11/09

Emergency “standard of proof” ≠ “standard of care”. The “standard of proof” required in emergency room cases (wilful and wanton negligence) is not the same as the “standard of care” that an expert report is required to discuss. The report was adequate without any discussion of the standard of proof. Baylor Medical Center v. Wallace, Dallas, 3/6/09

March 09

Cannot recast medical negligence as breach of warranty, no guaranteed outcome: Unsatisfied plaintiff plastic surgery patient sued physician alleging his assurances regarding outcome of facelift and liposuction were actually guarantees. Summary judgment for defendant affirmed.  The court distinguished Mills and Sorokolit by finding that the physician’s statements about expected outcome in this case did not carry the same level of specificity and promise as those considered in the cited cases.  Further, the plaintiff could not recast medical negligence claims as breach of warranty claims in order to take advantage of the four year statute of limitations. Key v. Viera, Hou(1st), 2/12/09

Inserting breast implants is not a use of tangible property: TTCA case in which defendants’ plea to the jurisdiction was upheld for plaintiff’s failure to establish that a state employee caused her injuries by using tangible personal property. The plaintiff complained of the defendant physician’s replacing her ruptured breast implants with larger implants, when she had requested smaller implants.  She claimed that the larger implants constituted a use of tangible personal property, and caused her breasts to sag prematurely.  Held, this is not a “use” of the implants waiving sovereign immunity.  The nature of plaintiff’s claims was negligence in the physician’s decision-making process to use larger implants to replace removed breast tissue. Arnold v.  U.  T.  Southwestern Medical Center at Dallas, Dallas, 2/25/09

Expert report cases:

Palosi v. Kretsinger, San Antonio, 2/11/09: Plaintiff appealed dismissal of his lawsuit based on failure to file the 120 day report.  Held, affirmed.  The death of plaintiff’s counsel during the 120 days did not excuse the failure to timely file the report.  Plaintiff’s open courts challenge did not apply to this statutory remedy.

Collini v. Pustejovsky, Fort Worth, 2/12/09: Dismissal of plaintiff’s case for failure to file adequate expert report was affirmed.  Plaintiff’s expert showed that he had experience in prescribing Reglan, but did not demonstrate his expertise in establishing a causal relation between Reglan and plaintiff’s Tardive Dyskensia.

Benish v. Grottie, Fort Worth, 2/19/09: Plaintiff sued over treatment performed in emergency room.  Defendant nurses and defendant physician moved to dismiss claiming that the expert reports were inadequate and vague in the usual particulars, adding also the novel argument that the reports failed to discuss negligence in terms of “willful and wanton” negligence, in accordance with Tex. Civ. Prac. & Rem.Code Ann. § 74.153 regarding care performed in emergency rooms.  Held, denial of dismissals affirmed. Section 74.153 establishes only a standard of proof for trial, and not a standard of care to be addressed in the expert report.

Livingston v. Montgomery, Dallas, 2/27/09: Plaintiff sued for damages to infant allegedly associated with an hypoxic episode during birth leading to brain damage. The defendant physicians moved to dismiss for failure to file adequate expert reports, which motions were denied. Held, affirmed. The plaintiff’s Ob/Gyn expert was qualified to offer causation opinions about neurologic injuries  resulting from hypoxia in newborns. The expert’s “lumping” together of all the defendant physicians for the purpose of discussing the one standard of care applicable to them was not impermissibly vague as to each defendant.




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