Houston Methodist St. John Hospital v. Cagle, 2025 WL 2077081 (Tex. Ct. App. July 24, 2025)
In many states, including Delaware, a medical expert is nearly always required to certify a medical malpractice case before or shortly after it is filed. States refer to this requirement in varying ways. In Delaware, a confidential “Affidavit of Merit” must accompany the filing of a lawsuit for medical malpractice. 18 Del. C. § 6853(a). The expert must swear under oath that “there are reasonable grounds to believe that there has been health-care medical negligence committed” by the defendant. § 6853(a)(1). The expert must be licensed to practice medicine in the same or similar field as the defendant and have practiced or taught in that field for the past three years. § 6853(c). Failure to file an Affidavit (or a compliant one) can lead to the outright dismissal of the lawsuit.
But is a medical expert required if the claim takes place in a hospital and involves the patient’s legal rights of possession to her newborn?
A “Vanishing Rare” Case
A Texas Appellate Court, in Cagle, recently wrestled with this question when it considered whether the plaintiff, the birth mother to a newborn, needed a medical expert where she alleged the birth hospital negligently allowed her newborn to leave the hospital with the child’s new adoptive parents. Cagle, the birth mother, gave birth with an adoption plan for the newborn. She changed her mind immediately after the birth. The hospital, however, released the newborn to the adoptive parents over her objection.
Cagle sued the hospital alleging it ignored her change of mind and allowed her child to be taken from her legal possession. To support her lawsuit, she named a former family law judge and practicing lawyer who provided an expert report as required under Texas law. Cagle sought compensatory damages for the pain and suffering caused by her losing her newborn. In a separate action, Cagle regained custody of the newborn after eighteen months when she defeated the adoptive parents’ attempt to terminate her parental rights.
The hospital moved to dismiss the claims based on the absence of an appropriate medical expert report. It argued that Cagle alleged the hospital failed to exercise appropriate judgment in turning over her newborn, which involved numerous medical and administrative standards of health care. Cagle responded that her claim was not one for medical treatment or health care; but even if it were, Cagle maintained, her legal expert was appropriate since the claims involved a newborn mother’s legal rights of possession after having initially signed away her rights to the newborn but then changed her mind after birth.
The Texas Court sided with the hospital, holding the claims invoked several Texas statutes and regulations on what the hospital was supposed to do under the situation. For instance, Texas requires hospitals to implement policies and exercise competent judgment to control access to hospital nurseries to prevent abduction. Ultimately, the Texas Court had no problem determining the claims were properly considered medical malpractice claims implicating the judgment of hospital staff and the adequacy of the hospital’s adherence to licensing standards.
However, the Texas Court determined that the legal expert could, in this “vanishingly rare case,” serve as an expert if the plaintiff obtained a new medical expert within thirty days. The Texas Court explained that it is unlikely a medical expert “would be qualified to opine about Cagle’s parental rights.” A family lawyer, it reasoned, was best suited to “connect the dots” between the medical decision-making and the legal rights of the birth mother and adoptive parents. The Texas Court remanded the case for the plaintiff to produce a new medical expert on her claims, though an appeal by Cagle is possible.
Delaware Parallels
In Delaware, the test for whether a claim involves medical treatment or “health care” is known as the “garden-variety tort” test. Greenwald v. Caballero-Goehringer, M.D., 2014 WL 7008959 (Del. Super. Nov. 25, 2014). If the tort (i.e., a civil, as opposed to a criminal, wrong) is one where the jury could find the defendant breached an ordinary standard of care and the failure was the cause of the injury without the assistance of an expert, the claim does not require an Affidavit of Merit. Id. at *3 (quoting Phipps v. St. Francis Hospital, Inc., 2011 WL 5570141, at *2 (D. Del. Nov. 16, 2011)). Situations found not to involve medical treatment are: (i) an injury involving the operation of a wheelchair by a hospital employee; (ii) an injury due to the transfer of the patient from a gurney to a hospital bed; and (iii) an injury from falling off a medical examination table. See id. at *2-*4. The idea is that an expert is not needed to tell the jury that the hospital worker pushed a wheelchair inappropriately or the doctor was inattentive in making sure the patient did not fall from the exam room table: anyone could evaluate and determine whether the conduct of the health care provider was appropriate.
As in Texas, it is the rare situation in Delaware when a medical expert is not required. Most allegations involving a health care provider or health care facility will involve some degree of professional judgment, requiring a medical expert in the same or similar field. The situations when an expert is not required tend to be limited to “patient handling” type claims, such as injuries resulting from a slip-and-fall or patient transfer. The significance of requiring an expert is initially the cost of obtaining the expert’s opinion: medical experts frequently charge several thousand dollars to review and evaluate medical records, meaning the claim must have a potential recovery that greatly exceeds the costs of prosecuting it through to a verdict. Often, however, there is a need to retain multiple experts in multiple fields over the life of a case to review, opine, and testify at deposition and trial to support a meritorious claim.
Dalton & Associates
Dalton & Associates handles medical malpractice claims involving serious bodily injury or death in Delaware, Pennsylvania, and New Jersey. We evaluate medical malpractice claims daily. When we consult with medical experts, we seek out the best medical experts nationally. Medical malpractice claims are expensive and difficult matters to prosecute. Dalton and Associates has the experience and expertise to competently and successfully evaluate and prosecute such claims.
Contact us by phone or email to begin your free case assessment with one of our excellent paralegals.
The above article is meant for general information purposes only. Any statements contained herein are meant only for such purposes and not as legal advice.
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