News: A patient who underwent a hysterectomy allegedly suffered multiple bowel and bladder lacerations, and a severed left ureter. The patient filed a medical malpractice action against the hospital and the physician who performed the hysterectomy. However, the court ruled in favor of the hospital defendant based on a plaintiff’s deficient expert report, which improperly required assumptions and did not sufficiently link the expert’s conclusion to the plaintiff’s injuries. While the hospital defendant was successfully dismissed from the action, the litigation continued against the physician defendant.

Background: An adult woman had been a patient of a licensed obstetrician/gynecologist (OB/GYN) since 2016. The patient first contacted the OB/GYN complaining about an irregular menstrual cycle. From May-August 2016, the OB/GYN collected the patient’s medical history and performed several tests to evaluate the patient’s condition. The patient’s medical history included multiple procedures: three cesarean sections in 1989, 1994, and 1999; a bilateral tubal ligation; and a splenectomy. A sonogram revealed multiple cysts on the lower part of her uterus. The patient also reported that she was taking hydroxychloroquine and prednisone to treat lupus.

The OB/GYN’s notes indicated the patient requested a hysterectomy, partially based on her fear of endometrial cancer. According to the physician, robotic-assisted laparoscopic hysterectomy and bilateral salpingo-oophorectomy was discussed with and recommended to the patient, who decided to continue with the hysterectomy. At the preoperative visit, the OB/GYN documented the patient was informed of robotic hysterectomy, abnormal uterine bleeding, and endometrial hyperplasia without atypia and still wished to proceed with the surgery. The physician performed a total hysterectomy to treat the endometrial hyperplasia without atypia. The patient alleged this constituted malpractice and argued she was not totally informed about the total hysterectomy procedure. Furthermore, during the operation, the physician allegedly perforated the patient’s left ureter, perforated the plaintiff’s rectum, and the patient allegedly suffered several lacerations to her bladder.

The injuries necessitated more surgeries for the patient. Shortly after the incident, the patient filed a medical malpractice action against the OB/GYN only. However, the patient amended the complaint to include the hospital that employed the OB/GYN as an additional defendant. The amended complaint alleged the patient’s injuries would not have occurred but for the hospital’s negligence in selecting and hiring the physician.

Pursuant to state law applicable to this case, a medical malpractice plaintiff is required to submit a report from an expert identifying the applicable standard of care, how the physician or healthcare provider failed to meet that standard, and the causal relationship between the care provider’s conduct and the patient’s injury. In this case, the patient initially submitted an expert report regarding only the physician’s alleged negligence. The patient eventually submitted a second expert report that detailed the reasons for the hospital’s alleged liability.

The defendants challenged the second report. They argued the plaintiff’s expert failed to provide any explanation as to how the hospital’s conduct caused the plaintiff’s injuries. The trial court ruled in favor of the hospital. The patient appealed, but the appellate court affirmed the trial court’s decision. As for the hospital’s dismissal, the physician defendant remained in the case.

What this means to you: A major lesson from this case is a successful avenue for physicians and care providers to challenge a patient’s inadequate claim: by undermining a patient’s expert. While the patient’s case against the physician defendant has yet to be decided, this ruling in favor of the hospital defendant provides an opportunity for defendants generally. In its analysis, the court focused on how the plaintiff’s expert’s report lacked essential elements specifically required by state law applicable in this case to qualify as a “good faith” effort to “inform the defendant of the specific conduct the plaintiff questions, and provide a basis for the trial court to conclude the plaintiff’s claims have merit.” While different states may have different requirements for experts, it is universal that there always is some standard applicable for an expert to qualify, and some minimal guidelines that must be satisfied. If an expert fails to meet those standards or to provide the state’s required documentation, it is imperative for defendant care providers to challenge an opposing expert of that basis. Such a challenge may, as in this case, provide a complete defense.

Here, the court explained the expert report must indicate how the negligent conduct caused the alleged injuries to establish the necessary element of causation. The defendants challenged this last point, arguing the patient’s expert failed to provide any such explanation, and therefore the entire report was deficient. The court first noted the expert report consisted of questions and answers, which was atypical. Injured patients claiming liability of a hospital in a medical malpractice case typically provide a history of the physician’s malpractice as well as evidence that their employer, the hospital or practice group, failed to take any remedial measures following such incidents.

However, in this case, the expert challenged the hospital’s hiring of the physician on the sole basis of the hospital’s low insurance requirements, which the expert argued constituted negligence. The state’s appellate court recognized negligent hiring is a viable claim, but the trial court identified multiple issues with the expert’s report. First, the main argument contained in the expert’s opinion required the assumption that only an unqualified physician would have such low insurance coverage.

The court noted the evidence did not support this assumption. The claim the hospital’s low insurance requirement constituted negligence in the selection of physicians who were allowed to practice at the facility was not supported by any factual basis, and thus was rejected by the court. Furthermore, the court identified how the expert’s report failed to explain how a higher insurance requirement would have changed the outcome of the procedure for the plaintiff and questioned what the minimum reasonable threshold for insurance requirement should have been. By failing to sufficiently support these allegations, the expert’s report did not satisfy the state’s requirements; it did not constitute a good faith effort to meet the definition of an “expert report.” By contrast, it required the court to infer, assume, and draw conclusions that were not based in fact.

This case exemplifies the importance of retaining an appropriate and qualified expert and providing the necessary supporting expert reports and documentation, particularly when required by state law. The appellate court recognized the negligent hiring of a physician was a viable claim in malpractice actions. Hospitals and employers should create policies, procedures, and mechanisms for evaluating a physician or care provider’s qualifications. Investigation into an applicant’s background, education, past employment, and any previous medical malpractice claims — and, critically, the result of such claims — are appropriate steps to take when considering whether to hire the applicant. Beyond these policies and procedures, thorough documentation is equally necessary. If a patient subsequently attempts to include the hospital or employer as a malpractice defendant, documentation of an existing policy and adherence to the policy will help defeat a claim that a hospital hired an unqualified physician.

While physicians’ and hospitals’ interests are most often aligned and overlapping in the context of a single patient, there may be nuanced differences between applicable defenses for one or the other, depending on the specific facts and circumstances of the case. Where state law allows, a hospital may attempt to distance itself from a physician by arguing the physician was an independent contractor rather than employee, when the physician’s negligence is definite. Generally, physicians and care provider defendants are likely to present a united front against a medical malpractice claimant. This permits the parties and attorneys to coordinate and better challenge a malpractice action, rather than fighting among themselves as to who bears liability. Such a determination is likely to happen eventually regardless, as juries are tasked with attributing percentages of liability in the event of an adverse verdict. Absent such an adverse verdict, physicians and care providers should attempt to collaborate in joint defense, circumstances permitting.

REFERENCE

  • Decided on March 5, 2020, in the Court of Appeals for the State of Texas, Case Number 13-18-00638-CV.