Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:This appeal arises from a medical malpractice claim brought by appellant, Sylvia Gray, against appellees, CHCA Bayshore L.P. d/b/a Bayshore Medical Center (Bayshore) and Ira H. Rapp, M.D. The trial court dismissed Gray’s suit with prejudice, after concluding that the expert report she filed failed to satisfy the requirements set forth in �74.351 of the Texas Civil Practice & Remedies Code. Gray’s suit alleged that an injury to her knee was caused by the flexing of her left leg during surgery, and that the injury could have been prevented had Rapp and the Bayshore’s nursing staff properly monitored Gray’s extremities during the operation. HOLDING:Affirmed. The report states, without explanation, that a single standard of care applied to both Bayshore and Rapp. While it is possible that an identical standard of care regarding limb monitoring during and after surgery attaches to an anesthesiologist (Rapp) and a perioperative nursing staff (Bayshore), such generic statements, without more, can reasonably be deemed conclusory. Conclusory statements regarding standard of care, breach or causation, do not constitute a good faith effort to comply with �74.351 in that they fail to adequately inform each defendant of the specific conduct called into question by the plaintiff’s claims. Similar weaknesses undermine the expert report in regard to how appellees breached the applicable standard of care. Whether a defendant breached the standard of care due a patient cannot be determined without specific information about what the defendant should have done differently. Here, the report contains only a general statement that appellees failed to monitor Gray’s left knee properly. The report provides no specific information concerning what actions appellees should have taken in the event they observed Gray’s knee flexing. Indeed, a literal reading of the report’s most direct statements concerning breach leads to the conclusion that simply monitoring Gray’s extremities, and taking no corrective action, would have prevented her injury. In view of such general and conclusory statements concerning breach, the court concludes that the trial court did not abuse its discretion in dismissing Gray’s suit. Further, the report does not state with any specificity how appellees’ alleged departure from the stated standard of care caused Gray’s knee injury. Instead, the report provides only the conclusory statement that the failure to monitor caused Gray’s injury. By not fleshing out how appellees’ failure to monitor Gray’s extremities caused her injury, the report does not convincingly tie the alleged departure from the standard of care to specific facts of the case. Such a failure has been found to be a sufficient reason for concluding that an expert report is statutorily inadequate. The report fails to put the appellees on notice as to who had what responsibility and how that person or persons departed from the standard of ordinary medical care of a patient under anaesthesia in failing to do some specific act required by a person in that position, causing damage that would not have happened had ordinary professional care been used. OPINION:Keyes, J.; Nuchia, Keyes and Hanks, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.