In 2003, as part of a package of legislation aimed at making it more onerous to pursue claims for medical malpractice (and supposedly thereby making health care more affordable), the Texas Legislature enacted a statute requiring plaintiffs in health care liability cases to serve expert reports supporting their theories of liability and causation within 120 days of the filing of the defendant’s answer. Under the statute, the failure to serve such a report within 120 days of the filing of the defendants’ answers results in mandatory dismissal and an award of attorneys fees against the plaintiff.
In Passmore v. Baylor Health Care Systems, No. 15-10358 (5th Cir. May 19, 2016), the U.S. Court of Appeals for the Fifth Circuit held that the Texas statute requiring early disclosure of expert medical reports in health care liability cases does not apply in federal court.
The facts of Passmore demonstrate the draconian effect that application of the expert disclosure statute can have on a meritorious lawsuit. Plaintiff Lee Passmore suffered permanent and disabling injuries caused by spinal surgery performed on him by Baylor employee Dr. Christopher Duntsch. Baylor had recruited Duntsch to perform spinal surgeries despite Duntsch’s history of alcohol and drug abuse and erratic behavior. After Duntsch botched several other surgeries (two resulting in deaths), his medical license was revoked by state authorities and he filed for bankruptcy. He fled the jurisdiction but later returned, and was arrested on charges that his botched surgeries constituted aggravated assault. He is currently awaiting his criminal trial in the Dallas County jail.
The Passmores sued Baylor Health Systems and others for hiring Duntsch despite the obviously disqualifying factors in his work history, and for condoning Duntsch’s egregious conduct during surgeries. The suit was filed in federal court because of the effect that it could have on Duntsch’s federal bankruptcy. Practitioners and legal observers have long understood that provisions like Texas’s expert disclosure requirement—which dictate the time and form for discovery, naming experts, and exchanging information—do not apply in federal court, which has its own rules governing such matters. In fact, by 2015 federal district courts in Texas and elsewhere had issued more than twenty opinions holding that the Texas expert disclosure statute does not apply to cases in federal court. Despite what the district described as this “plethora” of authority, Baylor asked for, and the district court granted, dismissal of the case based on the failure of the Passmores to serve the expert report required by the Texas statute.
A unanimous panel of the United States Court of Appeals for the Fifth Circuit reversed the dismissal order, holding that the Texas expert disclosure statute does not apply to cases in federal court. If applied in federal court, the court reasoned, the statute would “significantly interfere with federal control of discovery, an area governed exclusively by federal law.” Passmore at 9. Because the state disclosure requirement “directly collides” with the federal rules governing discovery (Id. at *8), the court then considered whether those rules exceeded the authority granted to Congress by the Rules Enabling Act. Id. at *10. Finding that the rules in question “regulate discovery, a matter that is certainly capable of classification as procedural,“ the court concluded that the federal rules in question “are valid under the Rules Enabling Act.” Id. at 11. Thus, a federal court presiding over health care liability claims governed by Texas substantive law may not apply the Texas statute mandating service of expert reports. Id.
While the answer to the choice-of-law question considered in Passmore appears straightforward, the Fifth Circuit’s decision brings certainty to the issue. The opinion also establishes that whatever policy concerns the Texas Legislature may have, it may not dictate the manner in which the federal courts conduct their business.
The case was briefed and argued on appeal for the Passmores by Brent Rosenthal of Rosenthal Weiner LLP.