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Chilcott v. Tubbs8/16/2001
Linda Phillips Chilcott, Individually, and Barbara Phillips Ruckman, Individually and on behalf of the Estate of Clara K. Phillips, collectively "Appellants," appeal from an order dismissing their suit against Dr. William M. Tubbs because the expert report filed by them pursuant to Article 4590i, § 13.01 did not set forth the standard of care. We reverse and remand.
FACTUAL SUMMARY
Dr. William Tubbs, a family practice physician, admitted seventy- seven-year-old Clara K. Phillips, the decedent, to Sierra Medical Center on January 23, 1998 for evaluation of hip and back pain. Shortly after her admission to the hospital, Phillips developed abdominal pain with rectal bleeding, nausea, vomiting, and melena. Dr. Tubbs referred her to specialists, including gastroenterologists and surgeons. A CT scan of the abdomen performed on January 27 revealed intra-abdominal bleeding. Phillips died of an intra-abdominal hemorrhage that afternoon. Alleging several instances of negligence, including failure to seek appropriate medical attention and failure to undertake an exploratory laparotomy, Phillips' surviving children brought a medical malpractice suit against Dr. Tubbs and four specialists who had consulted on the case during her hospital stay. They timely filed an expert report and curriculum vitae as required by Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d)(Vernon Supp. 2001). In that expert report, Steven Holtzman, M.D., stated that the applicable standard of care required the doctors caring for Phillips to perform exploratory laparotomy to control intra-abdominal bleeding or facilitate surgery.
Because Phillips' doctors did not undertake this action, he concluded that they deviated from the standard of care. Dr. Tubbs filed a motion challenging the adequacy of the expert report pursuant to Section 13.01(l) because the report did not contain a fair summary of the expert's opinion regarding the standard of care and the manner in which he failed to measure up to the standard of care. More specifically, Dr. Tubbs asserted that the expert report failed to address how he could have violated the standard of care since he is a family medicine practitioner and the performance of a laparotomy is outside of his area of expertise. Finding that the expert report failed to state the standard of care as to Dr. Tubbs, the trial court granted the motion to dismiss.
MEDICAL LIABILITY AND INSURANCE IMPROVEMENT ACT
In five related issues for review, Appellants urge that the trial court abused its discretion in dismissing their cause of action with prejudice since the expert report expressly states the standard of care, and alternatively, it constituted a good faith effort to comply with the expert report requirements of Article 4590i, § 13.01(d).
Relevant Statutes
The Medical Liability and Insurance Improvement Act (MLIIA) was enacted by the Texas Legislature to curtail frivolous claims. Hart v. Wright, 16 S.W.3d 872, 876 (Tex.App.--Fort Worth 2000, pet. denied); Horsley-Layman v. Angeles, 968 S.W.3d 533, 537 (Tex.App.--Texarkana 1998, no pet.). In order to encourage the screening of medical malpractice claims by an expert prior to filing, Section 13.01 requires a plaintiff to provide each defending physician or health care provider with one or more expert reports relating to liability and causation. Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.--San Antonio 1999, pet. denied); see Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d).
The expert report, along with a curriculum vitae of each expert, must be furnished to the defendant not later than the 180th day after the date on which a health care liability claim is filed or the last day o
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