McKellar v. Cervantes
2012 Tex. App. LEXIS 3004
| Tex. App. | 2012Background
- Maria Cervantes sued McKellar and Moore for health care liability related to high-risk twin pregnancy care and delivery.
- Gatewood, Atlas filed expert reports and CVs timely under Tex. Civ. Prac. & Rem. Code § 74.351; defendants objected to compliance with § 74.351(r)(6).
- Trial court overruled objections and denied motions to dismiss; appellate appeal followed on interlocutory order.
- Gatewood’s report alleged McKellar’s and Cook’s and nurse anesthetist’s deviations caused neonatal encephalopathy; it did not mention Moore.
- Atlas’s report attributed lapses in care to Cervantes’ management and stated Moore participated in planning but did not tie his actions to causation with sufficient specificity.
- Court analyzed whether the reports, viewed in aggregate, were a good-faith compliance with § 74.351(r)(6) and whether extensions to cure could be granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Gatewood as to Moore | Gatewood supports claims against Moore by linking care lapses to neonatal injury, despite not naming Moore. | Gatewood omits Moore's alleged negligent acts, failing § 74.351(r)(6) notice; no extension should cure. | Gatewood inadequate as to Moore; no cure extension for Moore. |
| Adequacy of Gatewood as to McKellar | Gatewood shows standard of care and breach for McKellar with causation linked in chain of events. | Gatewood's causation link for McKellar is insufficiently explicit. | Gatewood adequate as to McKellar; causation sufficiently tied in context. |
| Adequacy of Atlas as to Moore | Atlas’s report, though imperfect, indicates Moore's claim merit and should provide basis for extension. | Atlas mentions Moore only in passing without specifying breach or causation tied to Moore. | Atlas inadequate as to Moore; insufficient specificity to Dr. Moore alone. |
| Adequacy of Atlas as to McKellar | Atlas, read with Gatewood, suffices to put McKellar on notice and show meritorious claim. | Atlas alone does not adequately describe standard of care, breach, and causation for McKellar. | Atlas adequate as to McKellar when viewed aggregate with Gatewood; causation linked in context. |
| Thirty-day extension for cure | Scoresby allows extension to cure deficient elements where possible; Atlas supports Moore. | Gatewood lacks content about Moore; Atlas is deficient for Moore; extension should be denied. | Remand to determine whether a thirty-day extension should be granted for Moore based on Atlas; Gatewood no extension for Moore. |
Key Cases Cited
- Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (abuse of discretion standard for expert report adequacy)
- Longino v. Crosswhite, 183 S.W.3d 913 (Tex.App.-Texarkana 2006) (good faith and specificity required in expert reports)
- Jernigan v. Langley, 195 S.W.3d 91 (Tex. 2006) (explanation of standard, breach, causation with sufficient link to facts)
- Palacios, 46 S.W.3d 873 (Tex. 2001) (aggregate reading of multiple expert reports permissible)
- Patel v. Williams, 237 S.W.3d 901 (Tex.App.-Houston [14th Dist.] 2007) (causation chain acceptable if linked to facts and sequence of events)
- Benavides v. Garcia, 278 S.W.3d 794 (Tex.App.-San Antonio 2009) (causation shown by reading reports in the context of the entire record)
- Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011) (treats extension eligibility under § 74.351)
- Hayes v. Canoll, 314 S.W.3d 494 (Tex.App.-Austin 2010) (explains sufficiency of standard of care and causation discussion)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (courts disallow conclusory causation without linking to facts)