Expert Reports No Longer Required for Texans Suing for Medical Malpractice in Federal Court (At Least for Now)

On May 19, 2016, the United States Court of Appeals for the Fifth Circuit, which oversees Texas and neighboring states, held that the expert report requirements for medical malpractice claims required under Texas state law do not apply to cases filed in federal court. The Texas law requires that plaintiffs in a health care liability case serve an expert report within 120 days after the filing of a defendant's original answer. The Texas law limits most discovery until the expert report is served, and yet the law simultaneously requires that the expert report provide a summary of the standard of care, the manner in which the healthcare provider violated the standard of care, and the causal relationship between the failure and the injuries sustained by the claimant. If the injured person does not file a timely expert report or if the expert report does not meet the expert report requirements, then the claim may be dismissed.

The Fifth Circuit opinion Passmore vs. Baylor Health Care System, finds that the Texas law is in conflict with Rules 26 and 37 of the Federal Rules of Civil Procedure, which provide each federal district court judge with discretion to control the timing and sequence of discovery. Additionally, the Federal Rules of Civil Procedure outline the appropriate penalties should a party fail to comply with the district judge's discovery order. Because the Texas law is in direct conflict with Rules 26 and 37, the Fifth Circuit concludes that application of the Texas law in federal court would "significantly interfere with federal control of discovery, an area governed exclusively by federal law." Thus, a federal court entertaining state law claims may not apply the Texas expert report requirements.

This ruling is an important step in recognizing that Texas' expert report requirements cannot supersede federal law. However, the Fifth Circuit's decision was made by a panel of three judges, and the decision may be reconsidered either by the panel that decided it, the whole Fifth Circuit, or the United States Supreme Court.

If you believe that you or a loved one has suffered from medical malpractice, contact the experienced attorneys at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend today for a free consultation: 713-222-7211.

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