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Medical Expert’s Affidavit and CV Together Meet Expert Qualification and Injury Causation Requirements


A woman with a combination of immune diseases that left her susceptible to infection consulted a plastic surgeon about surgical breast reduction. The plastic surgeon performed the surgery without giving the woman pre- or post-operative antibiotics. The woman called the surgeon eight days later complaining of a blister on her breast. The surgeon examined her that day and noted some necrotic tissue, which he removed. Four days later the woman saw the plastic surgeon in the emergency room where he noted black tissue cast off from the surface of the skin. The woman was admitted for surgery to remove the necrotic tissue, which was tested for signs of infection.  The test results came back three days later positive for staphylococcus epidermis and enterococcus faecjum. The woman was prescribed antibiotics and sent home. Two days later she returned to the plastic surgeon’s office complaining of pain. She was admitted to the hospital where she was given IV antibiotics and underwent an MRI, which revealed fluid collecting in both breasts. The plastic surgeon drained the fluid from both breasts. The fluid was not tested for signs of infection. The wound where the plastic surgeon had removed necrotic tissue enlarged over the next twenty days. Ultimately the woman was referred to another doctor for breast reconstruction and skin grafts.

 

The woman sued the plastic surgeon for negligently performing surgery without first prescribing prophylactic antibiotics and failing to promptly diagnose and treat her infection. The plastic surgeon filed a motion to dismiss arguing that the plaintiff failed to file an expert’s affidavit in compliance with the healthcare claim statute. Specifically, he argued that the expert’s qualifications were not shown in his report alone and that the expert’s causation opinion was conclusory. The trial court denied the defendant’s motion to dismiss. The defendant filed an interlocutory appeal.

 

The Court of Appeals of Texas, Dallas, affirmed the trial court holding that the plaintiff had met the expert testimony requirement of the healthcare claim statute when she timely served on the defendant the expert report and curriculum vitae of a board certified plastic surgeon who was a clinical professor of plastic surgery at Baylor University Medical Center.

 

First, the court held that the expert’s qualifications need not be shown in the report alone. The served curriculum vitae should be read in conjunction with the served report to establish the expert’s qualifications. 

 

Second, the court held that for purposes of determining whether an expert report sufficiently links the alleged breaches of the standard of care to the defendant’s injuries, the causation section of the expert report is read in the context of the entire report. The defendant’s argument incorrectly considered only the section of the expert’s report stating the expert’s ultimate conclusion.

 

See: Godat v. McClain, 2012 WL 2899951 (Tex.App.--Dallas, July 17, 2012) (not designated for publication).

 

 

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