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TX: failure to provide required expert opinion: 'dismissal with prejudice' upheld by court.

CASE FACTS: Arturo Cavazos and his wife, acting individually and as parents and next friends of their minor child, sued Dr. Miguel Cintron. They alleged that Dr. Cintron was negligent in carrying out his duties as a physician during the process of labor and delivery of their minor child. They alleged that his action and inaction fell short of the acceptable standards of medical practice. The trial court signed an "Agreed Order on Plea in Abatement" on January 26, 2004, abating the case for sixty days. On April 2, 2004, after the abatement period had expired, Dr. Cintron filed a motion to dismiss for failure to timely file an expert report. On April 12, 2004, the plaintiffs provided an expert report prepared by Dr. Joseph Des Rosiers. On June 8, 2004, the trial court denied Dr. Cintron's motion to dismiss. Dr. Cintron filed a second motion to dismiss arguing that even if the plaintiffs' expert report was considered timely, it was inadequate. The plaintiffs contended that it was a "good faith" effort to comply with Texas law requiring an expert medical opinion to proceed with suit for medical malpractice. Following a hearing on the motion, the trial court dismissed the plaintiffs' complaint with prejudice. The plaintiffs appealed.

COURT'S OPINION: The Court of Appeals of Texas affirmed the order of the trial court, which dismissed the plaintiffs' complaint with prejudice. The court held, inter alia, that in deciding the adequacy of an expert report: "The issue for the trial court is whether the report represents a good-faith effort to comply with the statutory definition of an expert report." That definition requires a "fair summary of the expert's opinions about the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury." The court agreed with the trial court that the plaintiffs' expert's report failed to constitute a good-faith effort to comply with Texas law. The court noted that the report failed to present the standard of care relevant to the physician as well as others involved in the delivery of the plaintiffs' child. The court observed that the plaintiffs' expert's report failed to explain exactly how the defendant, Dr. Cintron, was negligent. Editor's Note: This case should serve as a guide to what must be included in an expert medical report in order for it to meet the standard of a good-faith effort, which is necessary under the law of Texas as well as most all other states. The court denied Dr. Cintron's cross claim for attorney's fees on the grounds that the trial judge should have granted his original motion to dismiss. However, since Dr. Cintron failed to file a notice of appeal as to this issue, the court denied his motion. Cavazos v. Cintron, No. 13-14-00529-CV (Tex.App. Dist. 3 (06/29/2006) S.W.3d--TX

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Medical Law Cases of Note
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Aug 1, 2006
Previous Article:Who was responsible for sponge left in patient?
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