Van Ness v. ETMC First Physicians
461 S.W.3d 140
Tex.2015Background
- Infant Nicholas Van Ness (born Nov. 13, 2009) developed fever, cough, and congestion; parents saw Dr. Kristin Ault on Dec. 11 and Dec. 15, 2009; no labs or antibiotics were ordered.
- Nicholas was admitted to a hospital on Dec. 20, treated for pneumonia/wheezing, transferred to a children’s hospital, and died on Jan. 20, 2010.
- Plaintiffs (Melissa and Ronald Van Ness) sued Dr. Ault and her employer under the Texas Medical Liability Act (TMLA), alleging negligence caused Nicholas’s death.
- Plaintiffs timely served an expert report by Dr. Alvin Jaffee, then an amended report after court objections; defendants moved to dismiss arguing the report’s causation opinions were conclusory and not linked to facts.
- The trial court denied the dismissal motion; the court of appeals reversed and dismissed the suit; the Texas Supreme Court granted review, reversed the court of appeals, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the expert report satisfies TMLA §74.351 by linking causation opinions to underlying facts | Jaffee’s report ties facts (symptoms, missed testing/treatment) to opinion that early antibiotics would have given ≥51% chance of survival | Report is internally inconsistent and states antibiotics are of little benefit, so it fails to show causation | Trial court did not abuse discretion; report as a whole was a good-faith effort and not conclusory |
| Whether conflicts within an expert report require dismissal | Conflicts can be resolved by the trial court; report need only provide adequate information showing claim merit | Internal inconsistencies render opinion conclusory and insufficient as matter of law | Trial court should evaluate and resolve inconsistencies; appellate court erred by substituting its judgment |
Key Cases Cited
- Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) (report must inform defendant of specific conduct and provide a basis to conclude claims have merit)
- Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011) (trial court must decide whether report contains a material deficiency; does not abuse discretion by resolving conflicts)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (expert must explain, based on facts in the report, how breach caused injury)
- Rosemond v. Al-Lahiq, 331 S.W.3d 764 (Tex. 2011) (sufficiency review of expert report is for abuse of discretion)