Chapter 74 Expert Report Requirements Revisited

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The Texas Supreme Court has once again addressed the question of what is required for an expert report to represent an “objective good faith effort to comply with [Chapter 74’s] definition of an expert report.”   Baty v. Futrell, CRNA, 2018 WL 665456.

In his report, the Plaintiff’s expert opined that the Defendant, a CRNA, deviated from the standard of care by administering a nerve block (for a patient undergoing cataract removal) in a manner that injured the patient’s optic nerve.  The injury resulted in a permanent loss of visual acuity in one eye.  The expert did not describe the technique used by the CRNA to administer the block.  Nor did the expert describe the manner which the standard of care required the block to be administered–other than stating that the needle used to administer the block should not be stuck in the optic nerve.  Simply put, there was no explanation in the report of the proper technique to be used in administering an anesthetic block during cataract removal surgery, or how a deviation from the proper technique by the CRNA resulting in the needle sticking the patient’s optic nerve.

 The trial court dismissed the lawsuit based on its finding that the expert report did not represent a good faith effort to comply with the requirements of Chapter 74. The court of appeals upheld the trial court’s dismissal. The court of appeals agreed with the trial court that the expert failed to describe the applicable standard of care and how it was breached by the CRNA.  A divided Supreme Court found that the report was a good faith effort to comply with Chapter 74’s requirements, and sent the case back to the trial court.  The dissent argued that the trial court and court of appeals were correct in finding the report deficient.

The majority focused on the expert stating plainly in his report what the CRNA did wrong—sticking the needle into the optic nerve while administering the nerve block.  The dissent focused on the failure of the report to describe the manner in which the nerve block was administered and how the manner in which it was administered deviated from the manner in which the standard care required it to be administered. 

The majority reasoned that the fact that is standard of care is, in this particular instance, fairly basic (do not stick the optic nerve with the anesthesia needle) does not render the report conclusory.  The dissent acknowledges that the Court’s prior decisions have set a “low bar” for what is required for an expert report to meet the requirements of Chapter 74.  Nonetheless, the dissent found this report did not clear that “low bar” because the expert says nothing about how to properly administer the anesthetic block.  In the dissent’s view, the expert wholly fails to describe the standard of care and how the CRNA failed to meet that standard—other than saying that you should not stick optic nerve with the anesthetic needle. 

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