Texas tort reform laws require medical malpractice plaintiffs to produce one or more detailed physician reports addressing the mistakes of defendant hospitals and doctors—and they’re due essentially out of the gate when a lawsuit is filed. Defendants then have the opportunity to argue that the reports are not sufficient and even take it up on appeal in the middle of the lawsuit if the trial court doesn’t go their way.
One of the frequent arguments that defendants make is that the plaintiff’s proposed expert is not qualified to offer opinions in a particular case or against a particular doctor. This is particularly the case when the plaintiff’s expert is offering opinions of doctors from a different specialty. I think there’s a simple explanation for this focus.
With their large budgets paid by insurance companies, defendants typically like to hire multiple medical experts, even when there are overlapping practice areas involved that all contribute to the care of the same type of patient. An experienced plaintiffs’ medical malpractice lawyer realizes that those significant expenses come out of the plaintiff’s bottom line when the case is resolved.
Houston’s First Court of Appeals released a new opinion on March 28, 2019, that tackles this issue. The case is styled New Medical Horizons, II, Ltd. d/b/a Cypress Fairbanks Medical Center, Anand Balasubramanian, M.D., and Doan K. Nguyen, M.D. v. Vickie Milner, Cause No. 01-17-00827-V, In the First Court of Appeals of Texas. The cases on appeal from the 61st District Court of Harris County, Texas, where the trial court case number is 2016-79980.
As a Houston, Texas medical malpractice attorney, I have handled many cases involving care provided at Cypress Fairbanks Medical Center. Incidentally, HCA, a national hospital chain, recently purchased Cypress Fairbanks Medical Center and announced that it is closing the hospital to convert it into a freestanding emergency room. Under Texas law, though, it will still be possible to bring claims against the hospital for past care, consistent with the statute of limitations.
In the Milner case, the healthcare at issue started when a diabetic patient went to Cypress Fairbanks Medical Center for an infection in her left foot. Her foot was swollen and blood red with some black. The initial workup showed that she had hyperglycemia (high blood sugar), an elevated white blood cell count (a sign of infection), and a metallic foreign body in her left foot shown on an x-ray.
Her attending physician was an internal medicine specialist named Dr. Balasubramanian. He ordered a consult with the surgeon, Dr. Nguyen. Although the surgeon felt that the patient was a high risk for possibly losing her toes because of diabetes and poor circulation, after he surgically removed the foreign body and did a debridement clean out of her foot, the plaintiffs allege that there was little to no physician follow-up or observation regarding her foot wound.
In my experience, many surgeons are eager to take people to the operating room, but don’t enjoy the follow-up of having to see patients and see how they’re doing after surgery.
When the patient’s daughter came to pick her up from the hospital five days later, she was surprised that her mom had a gangrenous diabetic infection of her left foot. In the lawsuit, the plaintiff alleged that this should’ve never happened, and wouldn’t have if the physicians and nursing staff had been paying attention and monitoring the foot wound.
The plaintiff met the 120-day deadline to serve expert reports on the defendants. The defendants filed objections, arguing that the expert was not qualified to provide opinions and his report wasn’t detailed enough. After some back and forth, the trial court ruled in favor of the plaintiff, so the defendants took it up on appeal.
The expert’s specialty doesn’t have to match the defendant’s specialty
One of the big quibbles or objections that the defendants had with the report is that the plaintiff’s expert was a vascular surgeon, while the defendants were an orthopedic surgeon and internist.
The First Court of Appeals rejected the defense argument, noting that the expert’s report stated that the standards of care apply to any physician treating an infected foot involving the presence of a foreign body in a diabetic patient, regardless of the physician specialty.
This is consistent with prior appellate decisions which have clearly held that an expert must do more than show that he’s a physician, but doesn’t have to be a specialist in the particular area of the profession for which testimony is offered. The court cited a prior case, Owens v. Handyside, 478 S.W.3d 172, 185 (Tex. App.—Houston [1st Dist.] 2015, pet. denied).
I like the way another case put it. The question of qualification isn’t resolved with the proposed expert specialty, but rather if he “has practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those confronting the malpractice defendant,” or “if the subject matter is common to and equally recognized and developed in all fields of practice.” Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
To head off or respond to objections of this nature in my cases, I make sure that experts I retain explain how the standard of care is substantially developed in multiple fields, as well as their direct experience with the relevant medical issue and treatment.
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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. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.