POTENTIAL BETTER OUTCOME DOES NOT MEET STANDARD FOR CHAPTER 74 EXPERT REPORT

Covey v. Lucero
Dallas Court of Appeals, No. 05-16-00164-CV (November 17, 2016)
Justices Bridges, Lang-Miers, and Whitehill (Opinion)

Kelli Hinson

An expert opinion that more timely diagnosis and treatment would have “potentially improved” a patient’s condition does not meet the standard for a Chapter 74 expert report. Plaintiffs in this case sued Children’s Medical Center and two healthcare providers after the death of their son. On November 29, 2012, the patient arrived at Children’s emergency room complaining of a fever, flu-like symptoms, and leg pain. He was in the emergency room for several hours, where he was treated with Zofran, ibuprofen, and Benadryl. He was then discharged with a prescription for Tamiflu and instructions to follow up with his primary care physician. He died the following morning while waiting to be seen by his primary care physician.

In support of their wrongful death and survival claims against the healthcare providers, the parents served defendants with an expert report from a pediatric emergency medicine specialist essentially stating the defendants were negligent in not (i) recognizing the seriousness of the patient’s condition, (ii) performing all the testing they should have, (iii) commencing more aggressive treatment, and (iv) hospitalizing the patient. In a medical malpractice case, the plaintiffs must prove the defendants’ negligence was, more likely than not, a cause of the injury. The expert in this case opined: “In my opinion and based on a reasonable medical probability, had such treatment been administered the overall outcome of [the patient’s] medical condition would have potentially improved.” The expert went on to opine that the defendants’ negligent acts and omissions “were in all reasonable medical probability major contributing factors that led to [the patient’s] death.”

Defendants moved to dismiss the case under Chapter 74, arguing the report failed to establish a causal relationship between their alleged negligence and the patient’s death. The trial court denied the motion, but the Dallas Court of Appeals reversed, siding with the healthcare providers. The appellate court held the report failed to establish more than a mere “potential” for a better outcome and also failed to adequately explain how meeting the identified standards of care probably would have saved the patient’s life. “An expert cannot simply opine that the breach caused the injury…. Instead, the expert must go further and explain, to a reasonable degree, how and why the breach caused the injury based on the facts presented.” Because plaintiffs had already been given one opportunity to fix the deficiencies in their expert report, the Court rendered judgment against plaintiffs, dismissing their claims with prejudice.