Medical malpractice claims and the ever-evolving Chapter 74 of the Texas Civil Practice and Remedies Code are not for the faint of heart. In Passmore v. Baylor Health Care Systems, a recent 5th Circuit opinion, the court stepped into an area most medical malpractice attorneys thought was clear: whether Texas’s “threshold expert report” requirement in medical malpractice cases applies in federal court.
In 2011 and 2012, Robert Leroy Passmore III underwent two back surgeries at Baylor Regional Medical Center in Plano. After the operations, Passmore was completely disabled. He filed suit in the Northern District of Texas, alleging medical negligence. (Passmore was required to file suit in federal court because the doctor who performed the two surgeries had filed for bankruptcy protection.)
In state district court, a “healthcare liability” suit brought pursuant to Chapter 74 requires a plaintiff, like Passmore, to serve all defendants with an expert report within 120 days of the defendant filing its original answer. Failure to comply with section 74.351(a) results in dismissal of the plaintiff’s claim. The requirement of a threshold expert report serves two purposes. First, it provides notice to the defendant of the specific medical negligence alleged to have occurred. Second, it provides information necessary for the court to conclude that the plaintiff’s claim(s) have merit. While the applicability of section 74.351 in state court is clear, its applicability in federal court was an unsettled question of law.
Before Passmore, the majority of federal district courts that had been presented with the issue of the applicability of section 74.351 found it to be a state procedural rule, inapplicable in federal court because it directly conflicts with the Federal Rules of Civil Procedure. Federal Rules of Civil Prodedure 26 and 37 outline the federal discovery scheme. Thus, application of section 74.351 would deprive the courts of discretion in controlling the timing and sanctions for noncompliance. However, this issue had not been considered by the 5th Circuit until Passmore.
The 5th Circuit’s decision in Passmore provides clarification on the rule of expert reports for cases pending in federal district court. As Passmore teaches, the threshold expert report requirement of Chapter 74 is not a prerequisite to filing and maintaining a health care liability claim in federal district court. The court engaged in a medical triage of sorts, reviewing the statute at issue and dissecting the federal rules to determine whether or not the statute collided with a valid federal rule of civil procedure. A thorough examination resulted in the following finding. “A federal court entertaining state law claims cannot apply a state law or rule if (1) the state law or rule ‘direct[ly] colli[des]’ with a Federal Rule of Civil Procedure and (2) the Federal Rule ‘represents a valid exercise of Congress’ rulemaking authority.’”
Federal Rule of Civil Procedure 26(a) governs pretrial disclosures and discovery, including expert designations and reports. The rule requires parties to disclose expert information, including expert reports “at the times and in the sequence that the court orders.” Reading the plain language of the rule, there is no requirement for the plaintiffs to serve an expert report within 120 days of the defendant’s original answer, thereby colliding with Federal Rule 26(a).
Federal Rule 37(c) provides broad discretion to federal courts that fail to comply with discovery, including expert disclosures. The rule permits a federal court to dismiss a noncomplying plaintiff but it is not a mandatory dismissal required by section 74.351(b). Because of section 74.351(b)’s mandatory language, it collides with Federal Rule 37.
The Texas statute and Federal Rules 26 and 37 answer the same question—whether a plaintiff’s failure to serve an expert report within 120 days of the defendant’s original answer requires dismissal of the health care liability claim. However, the two rules result in different answers. Therefore, the rules collide and the state law must yield to the federal rule.
Passmore is instructive and provides the proverbial differential diagnosis for healthcare practitioners, both legal and medical, the timing of the expert reports. However, it is important to note that Passmore did not address whether it would be an abuse of discretion under Federal Rule 37 to dismiss a plaintiff’s claim for failing to file a threshold expert report within 120 days. Presuming that it would be, the ultimate holding of Passmore may be that federal district court judges are free to choose whether or not they require a threshold expert report, so long as they include it in the docket control order.
The authors would like to thank Ryan Swink, STCL, for his contributions to the article.
Kathleen A. O’Connor, a former Harris County prosecutor, represents individuals, businesses, and organizations in several areas of law all over Texas and the United States. She has litigated and tried cases to verdict in more than 65 cases in both state district and federal district courts.
Ryan O’Connor is a first year attorney in Houston. He currently represents individuals and families throughout Texas in diverse personal injury and wrongful death cases.