In Hiner v. Gaspard, No. 09-07-240-CV, 2007 WL 2493471 (Tex. App.--Beaumont Sept. 6, 2007, pet. denied) (mem. op). the plaintiff's experts relied on medical records and a statement by the patient's wife recalling events during and after the alleged medical malpractice.
On appeal, the defendants argued that the affidavit of the patient's wife was incompetent, hearsay, and based on conclusions, speculation, and assumed facts.
The court rejected this argument, stating: "Appellants cite no authorities that hold that an expert who is preparing a report as required by Chapter 74 may not review documents that would not be admissible into evidence at trial. In addition, we note that Chapter 74 provides that any expert reports served 'under this section' are not admissible into evidence and may not be used in 'a deposition, trial, or other proceeding.'" Id.
The court continued, "Because Chapter 74 prohibits the introduction of expert reports into evidence, the Legislature likely did not intend that expert reports and the evidence reviewed by experts in preparing the reports must comply with the rules of evidence." Id.
Further, citing Rule 703 of the Texas Rules of Evidence, the court noted that even if the rules of evidence applied, the appellants cited no authorities supporting the proposition that the affidavit of the patient's wife did not support the type of facts or data reasonably relied upon by medical experts in preparing the reports required by chapter 74. Id.