Expert Medical Reports Required By Article 4590i must Refer To Each Defendant

The San Antonio Court of Appeals in Morrill v. Third Coast Emergency Physicians, P.A., (Opinion delivered October 11, 2000) held that §13 of the Medical Liability and Insurance Improvement Act, Article 4590i, Texas Revised Civil Statutes, requires that expert reports filed pursuant to such Act must specifically refer to each defendant and identify how each defendant has breached the applicable standard of care.

1. FACTS OF CASE
   
   

   Suit was brought by the parent of Sondra Morrill alleging medical malpractice for failing to properly diagnose and treat her for bacterial meningitis. Sondra was taken to Sid Peterson Memorial Hospital in Kerrville where she was examined by Dr. Milton Shaw, an ER doctor who worked under contract for Third Coast Emergency Physicians, P.A. The plaintiff alleged that Dr. Shaw, Third Coast Emergency Physicians, P.A., as well as the staff at Sid Peterson Hospital, negligently diagnosed and treated Sondra's medical condition.

   Within 180 days of filing suit, Morrill filed an expert report with the attorneys for the defendants. The expert for the plaintiffs, Donald J. Gordon, Ph. D., M.D., was an ER doctor who had practiced emergency room medicine as well as taught medical students emergency medicine for 20 years in the South Texas area. As such, Dr. Gordon stated that he had " . . . knowledge of accepted standards of care for the emergency diagnosis, emergency care and emergency treatment of bacterial meningitis, the condition affecting Sondra on the date in question."

   Dr. Gordon's report was critical of the care given to Sondra by the emergency room doctor and defendant, Milton Shaw. Dr. Gordon concluded that:

   ...it is my preliminary belief that serious breaches of the standards of care involving appropriate examination, documentation, laboratory testing, diagnosis, treatment involving the care of Sandra [sic] Morrill on July 29, 1997 by Dr. Milton Shaw, M.D. and that she was severely harmed and suffered serious injury as a direct result.

   Dr. Gordon's report did not mention any criticism of either Third Coast Emergency Physicians, P.A. or the medical staff at Sid Peterson Memorial Hospital. The attorneys for the defendants filed a motion requesting that the court dismiss the plaintiff's case on the basis that the report by Dr. Gordon did not meet the requirements of §13 of Article 4590i. The trial court agreed with the defendants and dismissed the claims of the plaintiffs, with prejudice.
   
   

2. THE MEDICAL REPORT WAS SUFFICIENT AGAINST DR. SHAW, THE ER DOCTOR
   
   

   The Court of Appeals held that Dr. Gordon's report met the requirements of §13 of Article 4590i to prevent dismissal of the claims of the plaintiffs against Dr. Shaw. The Court of Appeals found that Dr. Gordon clearly possessed " . . . the requisite expertise to render an expert report." More important, Dr. Gordon's report expressed his opinions concerning Dr. Shaw's alleged breach of the acceptable standard of care for an ER physician. As such, the Court of Appeals found that the trial court erred in dismissing the claims of the plaintiffs against Dr. Shaw.

3. REPORT UNDER §13, TO BE SUFFICIENT, MUST STATE SPECIFIC OPINIONS AS TO EACH DEFENDANT
   
   

   While the Court of Appeals found that the report of Dr. Gordon was sufficient to prevent dismissal of the claims against Dr. Shaw, the Court also held that Dr. Gordon's report was deficient in expressing any opinions against the medical staff at Sid Peterson Memorial Hospital or against Third Coast Emergency Physicians. As such, the Court of Appeals upheld the dismissal of the claims against Sid Peterson Memorial Hospital and Third Coast Emergency Physicians. The Court found that:

   Nowhere in the report does Gordon state the standard applicable to these health care providers or allege a breach of the standard.

In order for medical reports to be sufficient to prevent dismissal of the claims of the plaintiff for failure to comply with §13 of Article 4590i, "the report must specifically refer to the defendant and discuss how that defendant breached the applicable standard of care." Wood v. Tice, 988 SW2d 831. It is significant that even though Third Coast Emergency Physicians, P.A., was responsible for staffing the emergency room at Sid Peterson Hospital, the failure to express any opinions against Third Coast resulted in the dismissal of the claim against it.

Therefore, unless medical reports find specific faults against a health care provider, which fault falls below the applicable standard of care, the courts will uphold a dismissal against such health care provider.

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