Ragging on the Texas Supreme Court—particularly when it comes to the Court’s rulings on healthcare law—is not exactly a new pastime for me. To be honest, I’ve probably said a lot more negative things about the Court’s interpretations of the Texas Medical Liability Act than I have positive things. A lot more. So it’s nice to be able to point out when I think the Court got something right. And a couple weeks ago, it did exactly that in the case of Certified EMS v. Potts.
Potts is kind of a big deal for those of us on the plaintiffs’ side of the bar. Some time ago, the Texas Legislature required that plaintiffs in healthcare liability cases provide reports from qualified medical experts that support their allegations very early in a case or have the case dismissed. And by “very early,” I mean before any kind of meaningful investigation beyond reviewing medical records. No talking to opposing witnesses, no talking to defendants. Figure it out from the records or have your case thrown out of court. Sometimes, one theory is obvious from the records, but others aren’t so easily discovered.
The basic mechanism of the procedure is that a plaintiff has 120 days from the time he files his lawsuit to serve an expert report that addresses the three chief elements of his liability case—the standard of care, breach of that standard, and causation—on the defendant. Once he serves that report, the defendant has 21 days to object to deficiencies in it, and the plaintiff usually gets another 30 days to cure that deficiency. If the plaintiff doesn’t cure the deficiency, and the trial court agrees that it is a deficiency, the defendant can move to dismiss the case and recover his or its attorneys’ fees and costs from the losing plaintiff. The idea is to weed out, at an early stage, frivolous cases—the ones that can’t be won by the plaintiff; no way, no how.
Years ago, the Court held that the only thing a plaintiff needs to do in an expert report is set out the basic stuff the defendant did wrong—the conduct the plaintiff’s suit calls into question—and show that his case has “merit.” At the same time, the Court held that “showing merit” doesn’t mean proving the case, as would need to be done at trial, and it doesn’t mean removing all doubt as to whether or not the plaintiff can ultimately prevail. But in the grand tradition of “give ‘em an inch, and they’ll take a mile,” health care defendants have taken what was, ostensibly, supposed to be a brief procedural matter and turned it into a mini-trial that can last well over a year, all the while running up costs that the health care liability law was supposed to limit. Rather than saving objections to expert reports for those cases where there is a clear deficiency, many health care defendants and their lawyers—on marching orders from the real puppet masters, their insurance companies—object to every expert report they’re given and move to dismiss every case, regardless of its merit. And that’s what happened in Potts.
The facts of Potts really aren’t as important as the holding. That said, the plaintiff in Potts had set forth more than one theory of liability—against a corporate defendant, individually, and through one of its employees—but provided an expert report that supported only one of those theories—the one through the employee. The defendant moved to dismiss—not the case—but the claim against itself, individually, though the vicarious claim would have survived. The trial court denied the motion, and the First Court of Appeals affirmed, holding that the Texas Medical Liability Act seeks to dismiss entire cases or causes of action, not individual theories of liability, by its plain language. The Texas Supreme Court’s opinion is a bit shorter on analysis (it specifically says that it doesn’t adopt the First Court’s rationale), but it reaches the same conclusion—supporting one theory of liability lets the case go forward as to every theory alleged (and even new ones that weren’t alleged before, as long as the defendant stays the same).
The holding itself is useful, but for me, the real significance of Potts is that it’s an effort by the Texas Supreme Court to cram the genie back into the bottle. Recent precedents suggest that the Court is getting tired of the number of health care cases being brought up before it on procedural technicalities. Potts stands as another in a line of cases that attempts to restore authority to trial courts over a procedure that has become—put bluntly—disrespectful of the authority of those trial courts. With Potts, the Court has definitively cut off one avenue of appeal, and it may be only a matter of time before we eventually see a defendant held responsible for filing a frivolous appeal of an expert report matter. Texas appellate courts are, understandably, reluctant to issue such rebukes, but one may be necessary before the landscape truly changes. Nevertheless, the Texas Supreme Court has taken a needed step toward sanity with Potts. That is something I am happy to write about, any time.