”Defective” Expert Reports In Medical Malpractice Cases

The San Antonio Court of Appeals has applied an abuse-of-discretion standard to appellate review of a dismissal of a healthcare liability claim due to an inadequate expert report. See Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727 (Tex. App.--San Antonio 1999, no pet.).

In Schorp the plaintiff's healthcare claim was dismissed because the "anonymous" report failed to state the name and qualifications of the expert and failed to attach the required curriculum vitae.

Thus, the court reasoned there was no way to determine whether the plaintiff's expert was qualified. See id. at 732.

In yet another case, the Houston 14th Court of Appeals upheld a trial court's decision to strike two "expert letters or reports" noting that the letters failed to even show who was drafting the letter but appeared to be a letter requesting an expert opinion by marking a "yes" or "no" to the question of whether the defendant was negligent in his care of the plaintiff. Tibbetts v. Gagliardi, 2 S.W.3d 659, 662 (Tex. App.--Houston [14th Dist.] 1999, pet. denied).

Plaintiff's counsel filed an affidavit in support of her client's claim that these "yes" and "no" letters were a good faith effort to comply with the statue. Id.

Her affidavit merely stated, however, that it was an oversight not to be aware of the definition of an expert report and that she was not consciously indifferent. See id. at 663.

The court of appeals affirmed the dismissal and held that the expert letters were not a good faith attempt to comply with the statutory definition of an expert report. See id.