What you should know about medical malpractice expert law in Texas
To be qualified as an expert, a physician needs direct experience related to the claim
As a Houston, Texas, medical malpractice attorney, I often see new clients raise the subject of how much the case will cost. I appreciate these questions because I think it’s always important to understand the litigation process from the beginning.
Of course, when Painter Law Firm handles a medical malpractice negligence case, the client isn’t responsible for attorney’s fees unless there is a recovery.
In addition, our firm funds all case-related expenses up front. The only way those case expenses are reimbursed is in the event of a recovery, whether through settlement or trial. I know that clients appreciate the fact that the investigation and workup of the case is risk-free.
When it comes to case expenses, by far the largest expense for a Texas medical malpractice case is hiring medical experts.
On the defense side, doctors and hospitals are really concerned about hiring a platoon or company of medical experts. Those expenses are paid by insurance companies or huge hospital budgets. When it comes to plaintiffs, though, it’s important to achieve the right balance, because those hefty expenses eventually impact the client’s bottom line.
In my practice, I take this responsibility seriously. We’re willing to invest the resources to secure all of the necessary medical testimony but don’t want to hire extra unnecessary experts.
What does Texas law allow?
It’s been long-established by the Texas Supreme Court that when a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields. This fact has somehow been overlooked by many attorneys and trial courts—that’s why it’s important to hire an attorney with direct Texas medical malpractice experience.
Just last week, I appeared at an oral hearing in a Houston district court where this was the big issue. The defendant orthopedic surgeon wanted to have the plaintiff’s case dismissed because of their position that an anesthesiologist can’t testify as to the standard of care for an orthopedic surgeon.
The defense attorney and even the judge, I believe, were surprised when I presented them with copies of the 2018 Houston Court of Appeals opinion that flat-out rejected the defense argument. That opinion, styled Arturo Armenta, M.D. v. Robert Jones et al., Cause No. 01-17-00439-CV, in the First Court of Appeals (Houston), was issued on March 1, 2018.
The Armenta opinion specifically found that an anesthesiologist was qualified to testify as to the standard of care for an orthopedic surgeon when the issue related to complications that occurred upon extubation (removal of the breathing tube) once the surgery was over. As it turns out, the case I was arguing had the exact same situation.
When it comes to a physician’s qualifications to offer testimony outside his or her area of practice, there are a few big-picture questions.
First, is the subject matter of the testimony substantially developed in more than one field? Alternatively, does the doctor have practical knowledge of what is usually and customarily done by doctors of other specialties under circumstances similar to those confronting the malpractice defendant?
Second, does the proposed expert physician have direct experience on the issue related to the case? For example, if the case involves the diagnosis and treatment of sepsis, does the doctor have direct experience in handling such patients?
If you can answer both of those questions with “yes,” then under Texas law, a physician should be qualified to testify as an expert witness.
Texas law makes it clear that the analysis of whether a physician is qualified as an expert witness is directly related to experience. Practically speaking, that same experience comes to play when someone who’s seriously injured needs to hire a medical malpractice attorney.
Experienced Texas medical malpractice attorneys know the unique requirements of Texas law and how to develop cases competently, while not wasting money on unnecessary experts, which will ultimately be paid out of a client’s recovery.
We are here to help
If you or a loved one has been seriously injured by hospital or medical care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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