A woman underwent a C-section. The OB/GYN’s operative notes stated that there was an “extremely foul odor upon opening of the uterus,” and that her membranes were “very yellow.” She had a fever, tachycardia, and leukocytosis. She was discharged with no treatment for postpartum infection.
Five days later she presented at her OB/GYN complaining of pain at the surgical site, which was described as hard, red, and swollen. The OB/GYN unsuccessfully attempted to drain the surgical site with a syringe and sent her home without treatment for postpartum infection.
The next day her post-operative wound ruptured with significant fluid coming out. She was admitted to the hospital for a post-operative infected wound. An infectious disease physician diagnosed the woman with a post-operative wound infection likely secondary to infected amniotic fluid.
The woman filed a healthcare liability claim against her OB/GYN and her practice group for failure to diagnose and treat her postpartum infection. She served an expert report written by an OB/GYN in support of her claims. The woman’s expert OB/GYN opined that the standard of care required the OB/GYN to provide antibiotic therapy to the woman when she treated her five days after the C-section and that the OB/GYN breached that standard by failing to provide appropriate treatment including antibiotic therapy when the woman presented with signs and symptoms of post-partum infection. Regarding causation, the expert opined that the OB/GYN’s failure resulted in the infection progressing, which increased her suffering and required additional treatment.
The OB/GYN and her practice group moved to dismiss the lawsuit. The motion contended that the woman’s expert report failed to meet the requirements of the Texas Medical Liability Act (TMLA). Specifically, the motion argued that the report was conclusory.
The 448th District Court of El Paso County, Texas, denied the motion.
The Court of Appeals of Texas, El Paso, reversed. The court held that the woman’s expert report failed to meet the requirements of the TMLA because it failed to adequately identify the standard of care and provide an adequate explanation on how the OB/GYN’s alleged breach caused injury to the woman.
The woman’s expert report failed to meet the requirements of the TMLA because it failed to adequately identify the standard of care. Under the facts of the present case, the expert report was required to provide greater detail in order to adequately explain what was expected of the OB/GYN and how providing the woman with antibiotic therapy during her office visit would have prevented the injuries she suffered the very next day.
The woman’s expert report failed to meet the requirements of the TMLA because it failed to provide an adequate explanation how the OB/GYN’s alleged breach caused injury to the woman. The woman’s expert report was conclusory and failed to set out a causal connection between the OB/GYN’s alleged breach and the woman’s injuries. When it is unclear from the expert report how a patient with a pre-existing condition would have had a better outcome if there had not been a short delay in diagnosis and treatment, some medical explanation is required to link the delay to the patient’s outcome. The court reasoned that the woman’s sole claim was that the OB/GYN did not provide appropriate antibiotic therapy to treat her infection at the time of her office visit. As such, the woman’s expert’s report was required to supply the direct missing link, i.e., how a one-day failure to treat a pre-existing infection with antibiotics led to her injuries. Given the timing of her office visit, which was at least five days after her infection began, and the fact that the woman’s wound ruptured the very next day after her office visit, the court concluded it was incumbent upon the woman’s expert to provide a more detailed medical explanation to support his conclusion that the OB/GYN failed to meet the standard of care and that her failure to provide appropriate antibiotic treatment caused the woman’s alleged injuries.
The Court of Appeals of Texas, El Paso, reversed the trial court’s denial of the OB/GYN and her practice group’s motion to dismiss for insufficiency of the woman’s medical expert’s report and remanded for the trial court to consider giving the woman an opportunity to amend the report.
See: THN Physicians Association v. Tiscareno, 2016 WL 4379432 (Tex.App.-El Paso, August 17, 2016) (not designated for publication).
See Medical Law Perspectives June 2016 Report: How Risky Is Going to the Hospital? The Dangers and Liabilities of Healthcare-Associated Infections
See Medical Law Perspectives February 2016 Report: Problematic Procreation: Liability Risks in Diagnosing and Treating Infertility
See Medical Law Perspectives January 2015 Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability Risks