By Joey Berlin Texas Medicine October 2019
Expert Witness Report Standards Established In 2003
Before Texas’ landmark liability reforms passed in 2003, gray areas in the law often led to serious green for people who sued physicians.
Written expert witness reports helping patients prove their case against the doctor they’re suing? Those weren’t even required. Plaintiffs had to offer an expert for testimony, but requirements that those experts prove their mettle were vague. Physicians defending themselves in a negligence case were easy targets for “hired guns” who might have little or no grasp of the area of medicine they were critiquing.
Once tort reform passed, the lawsuit bonanza ended – and more stringent rules for expert reports were a major part of that shift: Written opinions became mandatory, and the “experts” had to demonstrate actual, relevant expertise on the actions of the physician they were evaluating.
Sixteen years later, those changes are still protecting Texas doctors. In July, the First Court of Appeals rejected an expert report from a Nevada pediatrician passing judgment on a pain management specialist at Kelsey-Seybold Medical Group in Houston. The decision highlights one of tort reform’s lasting impacts.
“Pain management is a board-certified specialty within anesthesia. I can’t pretend I have expert knowledge of pediatrics as an anesthesiologist, so I would not expect them to have in-depth understanding of interventional pain management,” said Houston anesthesiologist Shannon Hancher-Hodges, MD, chair of the Texas Medical Association’s Committee on Patient-Physician Advocacy. “As medicine becomes more specialized, it becomes extremely important to have people that are experts in the field in question to offer expert testimony.”
Expert Witness Report Required
Although the most well-known aspect of Texas’ 2003 tort reform might be its $250,000 cap on noneconomic damages, the law ushered in a number of other key changes. The expert-report requirement, and its accompanying standards, were among the biggest.
Thanks to tort reform, if a defendant in a case is a physician, a plaintiff has to file an expert opinion on the case within 120 days. Experts are required to provide their curriculum vitae (CV) to establish their credentials relevant to the case.
Prior to reform, expert witness requirements were fuzzy, says attorney Brian Jackson, general counsel for the Texas Alliance for Patient Access (TAPA). Expert qualifications were left open to interpretation, he says, which in turn opened the door to charlatans.
In one case, for instance: “I went to San Diego 11 times to depose the same California doctor who would be an expert on anything any plaintiff ever wanted him to be,” Mr. Jackson recalled. “That was an awful lot of money spent just because the plaintiffs could procure an expert that would say anything for money. [This wasn’t] a physician who had practiced with experience in the area and could then opine on the standard, and the breach of the standard, and causation.”
On top of that, there was no way to appeal to a higher court to challenge the validity of an expert opinion until after the trial was over. Prior to the end of the case, you could challenge it only in the court where the lawsuit started. If the trial court didn’t agree with the challenge, the expert’s opinion was accepted. End of story.
So the appeal that happened in the Kelsey-Seybold case never would have happened prior to tort reform.
In August 2017, Eddie Lynn Cheeks sued Kelsey-Seybold and Ahmed Sewielam, MD. On three dates in late 2015 and early 2016, Dr. Sewielam administered epidural spinal injections of corticosteroids to Ms. Cheeks to treat her chronic low back pain, according to court documents.
On Feb. 28, 2016, five days after the last injection, Ms. Cheeks was found unresponsive at home and was admitted to the hospital. She stayed until March 9, but was then readmitted on March 17. Her condition during her readmission included “back pain, recurrent fever, persistent leukocytosis, and a possible new left frontoparietal and temporal stroke.” She was discharged in April to continue three weeks of antibiotics and rehabilitation.
After filing suit, Ms. Cheeks submitted an expert report from Harry Hull, MD, a board-certified pediatrician based in Nevada.
Dr. Hull’s analysis concluded Ms. Cheeks was affected by a spinal-area abscess caused by two different types of bacteria, pneumococcus and Acinetobacter. His report said the antibiotic she was given was effective against the former, but not the latter.
“The Acinetobacter eventually spread into her blood, causing sepsis,” and required the second hospitalization, in which she needed antibiotics and surgery, Dr. Hull wrote. He decided it was “more likely than not that the contamination occurred at the Kelsey-Seybold Clinic where the intraspinal injections were administered to Ms. Cheeks. The bacterial contamination into Ms. Cheeks’ spinal area … could only have occurred if the Kelsey Seybold clinic fell below the standard of care for maintaining sterile procedure.”
Kelsey-Seybold and Dr. Sewielam objected to the report, saying Dr. Hull wasn’t qualified to opine on the standard of care for the clinic, and that his standard-of-care assessments were inadequate. The trial court disagreed, so they appealed to the First District Court of Appeals. The appeals court considered only the validity of the expert report; the lawsuit itself is pending.
Kelsey-Seybold declined comment for this story, citing the pending litigation. Dr. Hull also declined comment. An attorney for Ms. Cheeks did not return a call from Texas Medicine.
“Nothing” to indicate expertise
In a July ruling rejecting Ms. Cheeks’ report, the appeals court highlighted the qualifications required for someone to deliver an expert analysis against a physician. The person must be a physician who:
• Either is practicing medicine when giving the testimony or was practicing medicine at the time the claim arose;
• Has knowledge of the standards of care for the diagnosis, care, or treatment of the illness, injury, or condition at issue; and
• Is qualified, based on training or experience, to offer an expert opinion on those standards of care.
The expert needs to do more than establish credentials as a physician, but doesn’t have to be a specialist in the area of the profession being examined, the court added.
“The critical matter,” wrote Justice Richard Hightower, referencing a previous case, “is ‘whether the expert’s expertise goes to the very matter on which he or she is to give an opinion.’”
Although Ms. Cheeks’ court filings acknowledged that Dr. Hull “is a pediatrician who has no experience with steroid injections,” they said Kelsey-Seybold was overlooking “his practice, training, and experience as an epidemiologist with 40 years of experience in determining the cause of infectious disease.” Ms. Cheeks’ filings claimed Texas courts have warned judges “to avoid this overly simplistic and unfair method of qualifying medical experts.”
But the appeals court decided that Dr. Hull’s report “lacks even the basic statement that he is familiar with the standards of care applicable to a physician or medical clinic with respect to the administration of spinal steroid injections.
“Nothing in his report or CV establishes that Dr. Hull is an expert in the care relevant to Cheeks’ claims against the Kelsey-Seybold Clinic and Dr. Sewielam,” Justice Hightower continued in his opinion. “Nothing indicates that he has any training or experience with epidural spinal injections, and he does not state that he has ever administered or supervised an epidural spinal injection.”
The appeals court added that even if Dr. Hull were qualified, his report “fails to inform Dr. Sewielam or Kelsey-Seybold of the specific conduct criticized and fails to set out what specific care was expected but not given,” making the report deficient. The opinion says the report only lists “possible” violations of the standard of care, but doesn’t state that any of those possible violations actually took place. The report also “does not identify any particular failure to maintain sterile procedures” or identify anyone responsible for that alleged failure, and doesn’t give specific information about what the defendants should have done differently.
Justice Hightower’s opinion sent the case back to the trial court, which granted Ms. Cheeks’ side an opportunity to fix the report. She submitted a “supplemental expert report” from Dr. Hull in early August for the trial court to consider.
TAPA’s Mr. Jackson believes the appeals court’s decision is a direct product of tort reform, and that in the bad old days, Dr. Hull’s expert report probably would’ve been accepted as valid.
“But more importantly, it would’ve been entirely up to the trial judge,” he said. “Trial judges don’t always have a lot of experience in medical malpractice law, because they handle all kinds of cases. Especially when you get out in rural Texas, they might only have a medical malpractice case every five years. They just don’t have very many of them. They’re not well-versed on the law. And, trial judges oftentimes don’t want to throw a plaintiff’s case out. They want to let the jury do that; they don’t want to be the ones to do that.”He added: “In my opinion, no part of tort reform has done more to cut down on meritless cases than the expert-report requirement. Nobody’s ever changed my mind on that.”