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Clark v. HCA8/25/2005
y and properly prescribe medications, Plaintiff was forced to endure a painful condition which required subsequent painful surgery and is left with an 80%-90% paralysis of her right hand. Plaintiff has lost all independence and has been forced to remain in a long term care facility in order to receive appropriate care.
Clark timely filed an expert report and curriculum vitae from Dr. Elmer Pacheco. Dr. Pacheco reviewed the medical care provided to Clark at Del Sol Medical Center and Del Sol Rehabilitation Hospital in rendering his opinion.
On May 24, 2004, Dr. Palacios filed a motion challenging the adequacy of the expert report and seeking dismissal of the claim. He argued that the report did not demonstrate that Dr. Pacheco was qualified to render an expert opinion. He also alleged that the report did not (1) support the plaintiff's allegations, (2) set out the standard of care applicable to him or how he breached it, or (3) explain how the breach caused Clark's injury. On May 25, Dr. Moreno also filed a motion challenging the adequacy of the expert report and seeking dismissal on the same grounds. Del Sol filed its motion on July 19.
Clark filed a response supported by her attorney's affidavit. Counsel explained that he believed Dr. Pacheco was qualified to render an opinion because he was a board certified internist. In his view, Pacheco properly discussed the standards of care, the standards breached, the results of the breach, and damages. Counsel thus believed that the report met the requirements of the Act but opined that if it did not, then it was the result of accident or mistake. He then sought a thirty-day grace period in which to file an amended report. The trial court granted the motions challenging the report and dismissed the suit with prejudice.
THE MEDICAL LIABILITY AND INSURANCE IMPROVEMENT ACT
The Medical Liability and Insurance Improvement Act ("the Act") 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.2d 533, 537 (Tex.App.--Texarkana 1998, no pet.). In order to encourage the screening of medical malpractice claims by an expert prior to filing, the Act 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 Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(d), 1995 Tex.Gen.Laws 985, 987 (repealed 2003). 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 of any extended period as permitted under the statute. Id. Where an expert report is tendered, the defendant may challenge the adequacy of the report via a motion to dismiss. Id. § 13.01(l); Hart, 16 S.W.3d at 876. A report authored by a person who is not qualified to testify cannot constitute an adequate report. In re Samonte, 163 S.W.3d 229 (Tex.App.--El Paso 2005, orig. proceeding). A challenge to the adequacy of a report may be based on a claim that it fails to demonstrate the person rendering the opinion is qualified to testify, as well as on other claims of its inadequacy. Id.
The trial court must grant the motion only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(l), 1995 Tex.Gen.Laws 985, 987 (repealed 2003); American Transitional Car
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