care, deviation from the standards of care and proximate causation to multiple defendants does not render the report insufficient, so long as the report states that the same duty applies to each defendant.28 • A Chapter 74 expert may rely on unsworn statements of the plaintiff in forming opinions.29 • The 14th Court of Appeals in Houston has held that an expert physician could testify as to what care a reasonable physician would have provided in response to notification by the nursing staff of certain clinical findings.30 • Although it is a good idea for an expert to rule out pre-existing injuries and other possible causes, some appellate courts have held that this is not required. The key considerations for the sufficiency of expert opinions are ensuring that the expert sets forth each required element, applies the discussion to the specific facts of the case and leaves no
analytical gaps.31 Discretionary 30-day extension period If the trial court determines that a plaintiff made an objective good faith effort to comply with Chapter 74,32 but the expert report is insufficient, the court has the discretion to grant one 30-day extension to allow the plaintiff to cure any deficiencies.34 The plaintiff may use the same or different expert to cure any Chapter 74 report defects in the 30-day extension period.34 The Supreme Court has stated that trial courts should err on the side of granting extensions and must do so if the deficiencies are curable.35 In the 2011 Scoresby case, the court held: While the Act thus contemplates that a document can be considered an expert report despite its deficiencies, the Act does not suggest that a document utterly devoid of substantive content will qualify as an expert report. Based on the Act’s text and stated purposes, we hold that a document qualifies as
an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit. An individual’s lack of relevant qualifications and an opinion’s inadequacies are deficiencies the plaintiff should be given an opportunity to cure if it is possible to do so. This lenient standard avoids the expense and delay of multiple interlocutory appeals and assures a claimant a fair opportunity to demonstrate that his claim is not frivolous.36 Conclusion Chapter 74 is a procedural minefield and plaintiff’s attorneys who are not attentive to its detailed requirements can see their cases blow up right in front of their eyes. As the case law has developed since 2003, the appellate courts have interpreted the “good faith” requirement for a Chapter 74 expert report to be a bit easier to satisfy. When a trial court finds any deficiencies, though, the penalty for not remedying
thehoustonlawyer.com
March/April 2012
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