X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:John Burke Matthews, 84, was admitted to Heart Hospital of Austin on Sept. 27, 2002. Several days into his hospitalization, Dr. Jan Ogletree, a urologist, performed a urinary catheterization procedure on Matthews. Ogletree is alleged to have inserted the catheter negligently, causing Matthews to suffer traumatic bruising, bladder perforation and acute renal failure. Matthews died on Oct. 7, 2002. Plaintiffs Nancy Kay Matthews and Luann Matthews brought a health-care liability claim against Ogletree and Heart Hospital of Austin, complaining of Matthews’ medical care. Pursuant to Texas Civil Practice & Remedies Code �74.351, the plaintiffs timely filed expert reports from Dr. Richard Karsh, a radiologist; and nurses Alexandria Burwell, Marilyn Bignell and Walli Carranza. Karsh’s report was directed solely to Dr. Ogletree’s care, although it did not mention him by name. Karsh noted that Matthews’ x-rays showed “major extravasation of contrast, almost certainly representing a very significant bladder perforation. . . . [I]t is not even certain (from an x-ray standpoint) that the Foley catheter is in the bladder.” He continued: “In my opinion (but I would have to defer to a urologist on this) given the inability of the nursing staff to pass the Foley catheter into the bladder and the necessity for the urologist to utilize a stiff metallic”wire’ to traverse the urethra, such manipulation and catheterization should have been performed under fluoroscopic guidance. Had that been done the perforation might well have been avoided but certainly could have diagnosed [sic] at the outset, with the likelihood of a smaller tear having resulted. “If not recognized in a timely manner, such a tear could lead to long-term problems, including bladder (or, if a urethral tear, urethral) dysfunction, infection, etc. It is apparent that a cystogram was performed shortly after the catheterization, although the exact timetable is unclear; nor do I have records to determine whether or not the response of the physician to the tear was appropriate. (Of course, those might be best reviewed by a urologist.)” The nurses’ reports were directed primarily to the care provided by the nursing staff at the hospital, although they outlined various alleged failures by Ogletree to adhere to the standard of care as well. Ogletree timely objected to the sufficiency of the expert reports and moved to dismiss the case. Ogletree asserted that a radiologist was incapable of opining on a urologist’s standard of care and that no curriculum vitae was attached to the expert report as the statute requires. Ogletree also complained that the nurses’ reports did not satisfy Chapter 74′s requirement that an expert testifying against a physician must be “practicing medicine,” something nurses may not do. The hospital did not object to the reports within the statutory 21-day period but moved to dismiss nonetheless. The hospital contended that, because the nurses’ reports lacked a physician’s opinion on causation, they were, as expert reports, not merely deficient, but nonexistent. The trial court found that the radiologist’s report was deficient, denied Ogletree’s motion to dismiss and granted the plaintiffs a 30-day extension to cure deficiencies. The court also denied the hospital’s motion, finding that the nurses’ reports implicated the hospital’s conduct and that the hospital’s failure to timely object to the reports’ sufficiency within 21-days waived any objection. Ogletree and the hospital brought an interlocutory appeal of the trial court’s order. The 3rd Court held that it lacked jurisdiction over Ogletree’s appeal, because the trial court’s denial of his motion to dismiss was coupled with the grant of an extension to cure the deficient reports. The court reasoned that Ogletree could not sever the denial of the motion to dismiss from the grant of the extension and concluded that permitting an appeal from the denial would negate the statutory language prohibiting an appeal from an order granting an extension. As to the hospital, the 3rd Court held that the hospital waived its objections to any deficiencies in the report and affirmed the trial court’s order denying the motion to dismiss. The Texas Supreme Court granted the petitions for review. HOLDING:Affirmed. Under �74.351, if an expert report has not been served within 120 days of suit, because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. Because the Legislature authorized a single, 30-day extension for deficient reports, the court stated, health-care providers face only a minimal delay before a report’s sufficiency may again be challenged and the case dismissed, if warranted. Thus, if a deficient report is served and the trial court grants a 30-day extension, that decision even if coupled with a denial of a motion to dismiss is not subject to appellate review. Like the 3rd Court, the court concluded that, when a report has been served, the actions denying the motion to dismiss and granting an extension are inseparable. The statute plainly prohibits interlocutory appeals of orders granting extensions, the court stated, and if a defendant could separate an order granting an extension from an order denying the motion to dismiss when a report has been served, �51.014(a)(9)’s ban on interlocutory appeals for extensions would be meaningless. Because the plaintiffs served a report that implicated Ogletree’s conduct and the trial court granted an extension, the 3rd Court could not reach the merits of the motion to dismiss. The court concluded that the 3rd Court correctly determined it lacked jurisdiction over Ogletree’s appeal. The court also agreed with the 3rd Court’s determination that Heart Hospital waived its objections to the plaintiffs’ expert reports by not filing its objection within 21 days. OPINION:Jefferson, C.J., delivered the opinion of the court. CONCURRENCE:Willett, J., filed a concurring opinion. “I agree with the Court’s reasoning and result and write separately only to make this minor observation: the Court’s classification of all purported expert reports as either absent or deficient may prove inapposite in rare cases � where the claimed “report” is actually no such thing � and inadvertently expand the availability of the thirty-day extension provided by section 74.351(c) beyond what the Legislature intended.”

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.