News: A patient in the emergency department (ED) treated for pneumonia underwent a thoracostomy procedure, which ultimately led to his death by hemorrhage. The patient’s estate sued for negligence, supporting its case with an expert who testified the hospital and attending physician failed to properly monitor him after the procedure, causing them to miss the patient’s worsening symptoms until it was too late. The trial court found this expert’s report admissible, but the appeals court disagreed, finding the expert’s link from the alleged negligence to the patient’s death was too speculative and not properly connected to impose liability. The appeals court reasoned merely detailing how a doctor’s or hospital’s actions increased risk of negative outcomes does not sufficiently show causation; rather, the link of causation required under Texas law needed to be more concrete. The appeals court reversed the trial court, and the case against both the physician and the hospital was dismissed.
Background: A Texas patient presented to an ED with pneumonia in late 2017. He received a 28 French right drainage tube thoracostomy from the attending physician. During the procedure, the physician cut an artery, causing the patient’s symptoms to worsen. The patient developed tachycardia, hypotension, and intrathoracic bleeding, leading the physician to drain 750 cubic centimeters of blood. The patient’s condition continued to deteriorate, ultimately leading to his death the following day due to massive blood loss and acute hemorrhagic shock.
Two years later, the patient’s estate filed a wrongful death lawsuit against the physician and the hospital, alleging negligence caused the patient’s death. Pursuant to the Texas Medical Liability Act (TMLA), the patient’s estate served an expert report on the defendant hospital and physician, who filed objections to the report. Specifically, the estate’s expert testified the hospital’s emergency staff breached the standard of care and caused the patient’s death by failing to properly monitor the patient after the thoracostomy procedure. The trial court sustained the objection. The expert submitted a revised report, to which the defendants again objected. The defendants contended the expert report was deficient under the TMLA regarding both the hospital and the attending physician. The trial court agreed with the patient’s estate, finding the expert’s report was sufficient under the law to be admitted into evidence. The defendants filed an interlocutory appeal to resolve this issue before the case proceeded any further.
Under the TMLA, an expert report is sufficient if it provides a fair summary of the expert’s opinions regarding applicable standards of care, the manner in which care failed to meet the standards, and the causal relationship between the failure and the injury. A trial court need only find that a report constitutes a “good faith effort” to comply with the act’s requirements by informing the defendant of the specific conduct called into question, and providing a basis for the trial judge to conclude the expert’s claims are meritorious. On the other hand, a report is insufficient if it merely states the expert’s conclusions about the standard of care, breach, and causation. A judge may not “fill gaps” in the expert report by drawing inferences or guessing what the expert likely meant or intended.
On appeal, the defendants argued the expert report was deficient because its statement of causation was conclusory; it did not explain to a reasonable degree of medical probability how and why the hospital’s alleged negligence caused the patient’s death — essentially faulting the expert for not linking his conclusions to specific facts to prove proximate cause. The report stated the hospital “breached [the] standard of care by not providing adequate pre-, intra-, or post-procedure monitoring such that possible complications could not be recognized and intervened upon to prevent clinical harm,” and that “the placement of a large bore chest tube and removal of an existing chest tube in a patient with active therapeutic anticoagulation (blood thinning) incurred unnecessary risk of hemorrhage and exacerbation of existing pneumothorax, the clinical consequences of which were not recognized until they were irreversible.” However, the appeals court found this chain of events as laid out only spoke to alleged negligent conduct on behalf of the attending physician and did not adequately give a factual explanation as to how “adequate monitoring” would have changed the outcome (i.e., what medical information would have been revealed by adequate monitoring, what medical intervention could have been timely performed in light of such information, and how that intervention would have prevented the ultimate injury). The appeals court reversed the decision, finding the trial court should have sustained the hospital’s objection to the expert report, preventing the patient’s estate from presenting the expert’s opinion or report because it was not sufficiently detailed as to causation.
Likewise, the defendants argued the expert report was deficient as to the physician’s liability because its statement of causation also was stated causation in an impermissibly conclusory fashion. The ultimate question posed to the court of appeals was whether the expert’s report sufficiently detailed a chain of events connecting the physician’s alleged breach of the standard of care to the fatal hemorrhage. The report stated the physician breached the standard of care in three ways:
- failing to stop anticoagulants prior to a semi-elective invasive procedure;
- removal of the original chest tube before placing a new chest tube for a worsening pneumothorax;
- choosing a large-bore chest tube rather than a small-bore chest tube for pneumothorax.
However, the report did not allege any of these acts caused or worsened the patient’s bleeding, nor did it allege the physician negligently severed the patient’s artery when inserting the chest tube. Rather, the expert opined the physician’s acts and omissions “incurred unnecessary risk of hemorrhage and exacerbation of existing pneumothorax, the clinical consequences of which were not recognized until they were irreversible.” The appeals court found an increased risk of a hemorrhage is not enough to show causation of a hemorrhage; in sum, the expert did not explain what particular action the physician took, or what particular action he failed to take, that led to the patient’s hemorrhage. Without such an understanding, the court could not determine if the patient’s hemorrhagic shock was more likely than not caused by a negligent act of or omission by the physician. Just as it did for the hospital’s liability, the appeals court reversed the trial court and remanded the case with instructions to dismiss the case against the physician.
What this means to you: This case illustrates the standard of causation used in wrongful death and other actions alleging a patient’s injuries were caused by a doctor’s or hospital’s negligence. In this case, the expert essentially testified to several actions by the hospital and attending physician that increased the risk of injury to the patient, but did not specifically conclude any one or more of those allegedly negligent actions actually caused the patient’s death. The appellate court noted this deficiency, finding that cause in fact (or actual causation) is not established where the defendant’s negligence does no more than furnish a condition that makes the injuries possible. In other words, creating a condition that increases a patient’s risk of injury is not enough to show the required causal connection to a patient’s injury and allegations that a suboptimal instrument (in this case, a larger chest tube than should have been used) may have been used are likewise not enough to show causation. Rather, an expert must specifically tie one or more actions to the alleged injury, stating with a reasonable degree of medical probability the injury would not have occurred absent the specific action(s) detailed.
A key lesson stemming from this case is that courts are hesitant to impose liability on a hospital or physician where it cannot determine if the injury was more likely than not caused by a specific negligent act or omission. Regardless of what caused the hemorrhage — although it usually will occur following the severing of an artery — monitoring the patient following an invasive procedure such as insertion of a chest tube generally is considered to be the a standard of care. Notifications to the physician of rapidly deteriorating vital signs also is a general standard of care. Immediate intervention to find and control the source of the bleeding is yet another standard of care. A breach of all these standards in the presence of anticoagulant therapy will lead to an extreme loss of blood. This exsanguination, left unchecked, likely will be the cause of death. But without a solid expert to introduce such evidence, the case may not be made.
- Decided Feb. 12, 2021, in the Texas Court of Appeals, Seventh District, Case Number 07-20-00253-CV.