A woman with scleroderma was diagnosed with a cancerous growth on the heel of her foot. A doctor administered two rounds of radiation therapy. The woman obtained subsequent treatment elsewhere for resection of her heel and, ultimately, amputation of her leg.
The woman sued the doctor for medical negligence. The woman submitted the report of a medical expert. The doctor objected to the adequacy of the report alleging the report was conclusory and inadequate as to proximate cause. The 295th District Court, Harris County, Texas, gave the woman 30 days to amend the report. The woman submitted an amended expert report from the same expert. The doctor objected to the adequacy of the amended report and moved for dismissal alleging the report was conclusory and inadequate as to proximate cause and the expert had no qualifications to opine on proximate cause. The 295th District Court, Harris County, Texas, denied the doctor’s motion to dismiss.
The Fourteenth District Court of Appeals of Texas, Houston, affirmed. The court held that the expert’s report was adequate on the issue of causation and the doctor’s objection to the amended expert report on the ground that the expert was not qualified to opine on proximate cause was untimely.
The expert’s report was adequate on the issue of causation. The expert did more than merely state that he knew the standard of care and conclude that the doctor failed to meet it. The expert linked the doctor's alleged failures with the woman's injury, opining that radiotherapy led to poor healing and poor response to subsequent treatment, and made the ultimate amputation necessary. Specifically, the expert based this opinion on the fact that the doctor's chosen course of treatment—radiotherapy without a surgical consultation—was “relatively contraindicated” for a person with the woman's pre-existing condition of scleroderma. The expert supported his conclusion by identifying treatments other than radiotherapy that he opined would have prevented the spread of cancer and made amputation unnecessary. The expert's report did more than merely state that the amputation followed the doctor's failure to meet the standard of care. The expert stated that amputation “became necessary” as a result of the doctor's failures, and his failures led to the woman's poor healing and poor response to subsequent treatments and, ultimately, to amputation of the woman's leg. The court noted that it did not require an expert report to explain, for example, why a stage I cancer was surgically resectable, why a stage IV cancer was incurable, or how a cancer will spread without surgical removal, since this level of detail was unnecessary for the defendant to be informed of the conduct complained of and for the trial court to conclude that the claims had sufficient merit to withstand a challenge at the expert-report stage. The expert's report adequately linked his conclusions (that “amputation became necessary” as a result of radiotherapy and that “amputation would not have been necessary” if an alternative treatment had been employed to prevent the spread of cancer) with the doctor's alleged breaches (that he failed to consult a surgeon, that he failed to recognize radiotherapy is contraindicated for a patient with scleroderma, and that he did not initially attempt surgical resection). The court reasoned that it could not conclude that the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles when it ruled that the expert's report was adequate on the issue of causation because the expert identified the alleged breaches of the standards of care and linked those alleged breaches to the woman's injuries—the radiotherapy, as opposed to surgical resection, resulted in poor response to subsequent treatment, poor healing, and ultimate amputation of her leg. The court concluded that the trial court did not abuse its discretion by denying the doctor's motion to dismiss.
The doctor’s objection to the amended expert report on the ground that the expert was not qualified to opine on proximate cause was untimely. The doctor did not challenge the expert's qualifications in his objections to the original report or otherwise within 21 days from the date of service of the original report. Because the original report and amended report were both from the same medical expert, the doctor’s objection after the report was amended was waived even though the original report may have been deficient. Both of the reports contained identical paragraphs related to the expert's qualifications and his curriculum vitae. The doctor had every opportunity to object to the expert's qualifications within 21 days of service of the original report.
The Fourteenth District Court of Appeals of Texas, Houston, affirmed the trial court’s denial of the doctor’s motion to dismiss.
See: Hilton v. Wettermark, 2015 WL 2169516 ( Tex.App.-Hous. (14 Dist.), May 7, 2015) (not designated for publication).
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See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis