Texas certificate-of-merit law ruled constitutional

Texas' certificate-of-merit law withstood another constitutional test after an appeals court validated the requirement for plaintiffs to file an expert report confirming the merits of a medical liability case.

The 5th District Court of Appeals rejected arguments that the legislation amounted to an unconstitutional special law that treated medical liability lawsuits differently from other cases. Nor does a provision subjecting plaintiffs who file a deficient report to financial penalties violate the constitutional separation powers, the court said.

Judges still have discretion to determine the amount of monetary sanctions and whether plaintiffs made a good-faith effort to pursue a case.

The expert report requirement "rationally relates to the interest of the state to prevent medical practitioners from defending frivolous claims at a high cost to the health care system," states the Aug. 12 opinion, which reinforced past decisions on the statute.

The ruling is a victory for physicians, who say the law has played a key role in keeping Texas' liability climate stable and boosting access to care.

Since the 2003 law was enacted as part of a liability reform package that included a $250,000 noneconomic damages cap, the state has seen a 50% drop in medical negligence cases, a 30% reduction in physicians' liability insurance rates and more than 20,000 newly licensed doctors, Texas Medical Assn. statistics show. The organization was not involved in the case but supports tort reform.

Questioning the ruling

But the added expert report requirement means extra protections for physicians and hospitals, said plaintiffs' attorney Bobby O'Conor of Houston.

"[Patients] have to show ahead of discovery that they have a meritorious claim, whereas in any other case, you go about your business and take depositions and figure out what happened," he said, pointing to a 2006 Oklahoma Supreme Court ruling invalidating the state's certificate-of-merit statute as a special law.

In addition, the Legislature's imposition of mandatory sanctions not only treads on the judiciary's powers but also places an unfair burden on plaintiffs who make a good-faith effort to pursue a case, O'Conor said.

"It's a horrible slap in the face to someone who just lost their son. This [case] is hardly frivolous, but now the victims have to pay."

The ruling stems from a wrongful death claim Joshua Hightower's parents filed after their son died from complications of rabies contracted during a kidney transplant at Baylor University Medical Center in 2004. Other patients who received organs from the same donor also died of the disease.

The Hightowers filed two physician expert reports supporting their claim that the surgery was risky given the donor's history of drug use and incarceration, and that the hospital and transplant doctors misrepresented the risks involved.

A trial court found the reports deficient and dismissed the case.

The appeals court agreed, saying neither report showed "a connection between the donor's alleged high-risk status and the rabies virus. ... Joshua was injured by rabies, a condition of the donor that no one was aware of at the time of the surgery."

Expert reports need not demonstrate all of a plaintiff's proof, but they "must explain the basis of the expert's statement to link the conclusions to the facts," judges said.

Attorneys for Baylor and the doctors did not respond to requests for comment.

O'Conor said the court's rejection of the expert reports ignores case law permitting liability even for the unintended consequences of negligent conduct.

At this article's deadline, the Hightowers had not yet decided whether to appeal. If not, the case will return to a trial court to determine monetary sanctions.