Strom v. Memorial Hermann Hospital System

To the extent that the reports state what an ordinarily prudent physician would not have done, the reports are addressing a breach of the standard of care rather than the applicable standard of care itself, and thus fail to provide an adequate statement of the standard of care.

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Torts No. 01-01-00756-CV, 5/29/2003. Click here for the full text of this decision FACTS: The appellant, Florence M. Strom, filed health-care liability claims against the appellees, Memorial Hermann Hospital System d/b/a Memorial Hospital Southwest and Memorial Hospital System and Dr. Henry Blum, individually and d/b/a Sugar Land Orthopedic Associates. Strom appeals to challenge orders that dismissed those claims, with prejudice, on the grounds that the expert reports she provided to support those claims under �13.01(d) of article 4590i, the Medial Liability and Insurance Improvement Act, did not comply with �13.01(r)(6) of that statute. HOLDING: Affirmed. Strom relies upon the following excerpts from the reports of Doctors Robert A. Callewart and George W. Sibley: Examining the two reports for a showing of what an ordinarily prudent physician would have done under the same or similar circumstances, there simply is no statement of the standard of care. To the extent that the reports state what an ordinarily prudent physician would not have done, i.e., what Blum did, the reports are addressing a breach of the standard of care rather than the applicable standard of care itself. Because the reports fail to provide an adequate statement of the standard of care, it is unnecessary to examine whether they fulfill the other two requirements for expert reports pursuant to article 4590i �13.01(r)(6). Regarding the hospital, although the reports mention that Strom’s knee injury does not normally occur when the usual standards of care are exercised, and even note that the left knee must not have been properly positioned or padded, the reports nevertheless fail to set out the applicable standard of care. Once again, the most that can be said is that the reports address a breach of the standard of care by not properly positioning or padding the leg and knee. Moreover, the reports are conclusory regarding causation, by failing to set out the manner in which a failure to properly pad and position the leg and knee resulted in Strom’s knee injury. To comply with �13.01(g), Strom had to file her request for additional time before any hearing on a defendant’s motion to dismiss under �13.01(e). Here, Strom did not request additional time to comply with �13.01(d) on the grounds she raises in this appeal until after the hearing on the hospital’s motion to dismiss. Accordingly, her request was not timely. Because Strom’s request for additional time was not timely, the trial court did not abuse its discretion by refusing to grant relief. Article 4590i �13.01(e)(1) provides that the trial court shall award reasonable attorney’s fees as a sanction for a plaintiff’s failure to comply with the requirements of �13.01(d). The court holds that the trial court did not err by awarding attorney’s fees without convening a jury or requiring testimony beyond proof by affidavit. OPINION: Taft, J.; Taft, Hanks and Mirabal, JJ.

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