A month after his birth, a boy was examined by his doctor at a regular checkup. The boy had a fever of 100.2 degrees, was coughing and suffering from nasal congestion, and had been exposed to sick contacts at home. He had been coughing to the point that he could not breathe and was exhibiting facial discoloration. The doctor did not order any tests at this appointment. Four days later, the boy’s parents brought him back to the doctor because his symptoms had worsened. The doctor physically examined the boy, but again did not perform or order any tests. Five days later, the boy’s parents took him to the hospital, where he was treated for acute pneumonia, wheezing, and tachycardia. He was transferred to another hospital where he died 40 days after his one-month checkup.
The boy’s parents sued the doctor and the doctor’s employer. The complaint alleged that the doctor’s negligence caused the boy’s death and that the employer was vicariously liable for the doctor’s negligence. During discovery, the boy’s parents provided the doctor and her employer with a report by their medical expert, a physician. In his report the physician opined that antibiotics have little effect on pertussis other than reducing the potential for spreading. The physician also opined that had the doctor ordered laboratory tests at either the one-month checkup or the subsequent appointment and administered antibiotics prophylactically while the test results were pending the boy would have had a 51% or more chance of survival. The report also stated that prevention of pertussis via vaccination is of primary importance because treatment is of little benefit to the person infected, unvaccinated or incompletely vaccinated infants younger than 12 months of age have the highest risk for severe and life-threatening complications and death, a reasonable guideline is to treat infants aged less than one year within six weeks of cough onset, and antibiotics may shorten the duration of infectiousness and are thus recommended.
The doctor and her employer moved to dismiss the suit, contending that the parents’ medical expert’s opinions as to causation were conclusory because the report failed to link the expert’s opinions to the underlying facts. The 2nd Judicial District Court of Texas, Cherokee County, denied the motion. The Court of Appeals for the Twelfth District of Texas, Tyler, reversed and ordered the suit dismissed. The court of appeals focused on the expert's statements that treatment with antibiotics is of little benefit and only would have lessened the boy's symptoms and reduced the contagiousness of his pertussis. Based on those statements, the court of appeals concluded that the report showed that treatment earlier than his admission to the hospital would not have prevented the boy's death; thus, the report did not demonstrate a causal relationship between the doctor's alleged negligence and the boy's death.
The Supreme Court of Texas reversed the judgment of the court of appeals. The court held that the trial court did not abuse its discretion by denying the doctor and her employer’s motion to dismiss in light of conflicting statements in the parents' medical expert’s report.
The trial court did not abuse its discretion by denying the doctor and her employer’s motion to dismiss even though there were conflicting statements in the parents' medical expert’s report. A plaintiff asserting a health care liability claim must serve each defendant with an expert report which explains, based on facts set out in the report, how and why the breach caused the injury. The court recognized that the medical expert’s statement about antibiotics having little effect on pertussis other than reducing the potential for spreading the disease was in tension with his statements that the boy was treatable with antibiotics and would have had a 51% chance of survival if his doctor had administered them. The court noted that the first-referenced statement standing alone would not demonstrate that under the facts as set out in the report the doctor's alleged negligence was causally related to the boy's death, and the medical expert’s causation opinion would be conclusory. However, the medical expert's report also set out that the boy's illness was treatable at his one-month checkup and the subsequent appointment, and starting antibiotics at that time and continuing them as indicated by diagnostic testing probably would have prevented the boy's death. The court reasoned that, given these parts of the report, it was within the trial court’s discretion to determine that the medical expert's opinions were linked to the underlying facts and explained why and how the doctor's timely treatment of the boy with antibiotics would have prevented his death and decide whether the report demonstrated a good faith effort to show that the parents' claims had merit.
The Supreme Court of Texas reversed the judgment of the court of appeals and affirmed the trial court’s denial of the doctor and her employer’s motion to dismiss.
See: Van Ness v. ETMC First Physicians, 2015 WL 1870051 (Tex. Apr 24, 2015) (not designated for publication).
See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication