The Court of Appeals Ninth District of Texas at Beaumont (“Texas Appellate Court”) held in its Memorandum Opinion filed on March 7, 2019 in a Texas birth injury medical malpractice case that the plaintiffs’ expert report and accompanying resume, which listed the expert’s qualifications, allowed the trial court to conclude that the report met the requirements in the Texas Medical Liability Act (“Act”).
The Underlying Facts
The plaintiffs gave birth on May 16, 2015. The baby died approximately six hours after he was born. The plaintiffs’ expert’s medical report stated that the baby died due to being deprived of oxygen and blood when he was born in a prolonged breech presentation (he was delivered buttocks first). An autopsy determined that the baby died of “global hypoxic ischemia of the brain in the setting of breech presentation with prolonged delivery.” The plaintiffs’ Texas medical malpractice lawsuit alleged that the defendants failed to timely and adequately assess the mother’s condition, failed to timely provide her with the care she needed for her condition, and failed to timely and adequately diagnose her condition (i.e., the defendants were negligent for allowing the mother to deliver the baby via a vaginal delivery instead of delivering the baby by cesarean section), which proximately caused the baby’s death. The plaintiffs’ expert’s report stated that the baby would have survived delivery had he been delivered via cesarean.
The defendants filed motions to dismiss, arguing that the plaintiffs’ expert was not qualified because he was not actively practicing medicine or providing health care when the plaintiff delivered the baby or when the plaintiffs filed their Texas medical malpractice wrongful death lawsuit.
Plaintiffs’ Expert’s Qualifications
The plaintiffs’ expert submitted a report and his resume that shows that he is currently licensed to practice medicine in Tennessee, that he has specialties in obstetrics and gynecology, and that he is a subspecialist in maternal fetal medicine. He holds board certifications from the American Board of Obstetrics and Gynecology. He first received his board certification in 1981 and has been recertified since then in the field of obstetrics and gynecology, and in his subspecialty of maternal fetal medicine.
The plaintiffs’ expert has authored or co-authored two books in the fields of his specialties, authored or co-authored eighteen chapters in other books that were published in the field of obstetrics, authored or co-authored eighty-three journal articles, published on subjects relevant to his certifications, and authored or co-authored 104 abstracts in fields that involved his specialties.
The trial court denied the defendants’ motions to dismiss, finding that the plaintiffs’ expert’s report satisfied the expert report requirements in the Act and that, to the extent there were any deficiencies in the information that the plaintiffs’ expert provided about whether he was actively practicing medicine, “good reason [exists] to admit [his] testimony based upon his extensive years of experience, training and teaching in the field at issue in this case.” The defendants appealed.
Texas Medical Liability Act
The Act requires that plaintiffs suing health care providers for medical malpractice must file an “expert report” not later than the 120th day after the date the health care provider answered the suit. Under the Act, an expert report is a written report by an expert that provides a fair summary of the expert’s opinions, as of the date of the report, about the standards of care that apply to the health care providers, the manner in which the medical care provided to the patient failed to meet that standard, and how the medical provider’s failure to meet the required standard of care caused the patient’s injury.
To qualify as an expert in a health care liability claim against a physician, the Act requires the expert to be a physician who (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.
The Act defines the term “practicing medicine” as including, but are not limited to, “training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.”
The Act requires the report’s author to be “a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence[.]”
Section 74.402 of the Act addresses the qualifications for experts who author expert reports in health care liability cases that are critical of the care provided to patients by hospitals. To qualify as an expert on the subject of the medical care a patient received at a hospital, the Act states the person may qualify as an expert witness only if the person (1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; (2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
The Texas Appellate Court stated that as to the requirement in the Act that a physician be actively practicing medicine at the time identified in the Act, the term “practicing medicine” is defined to include (but is not limited to) “serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physician.”
The Texas Appellate Court stated that the plaintiffs’ expert’s information provided to the trial court shows that he is currently licensed, that he is board certified in multiple fields relevant to delivering babies, and that he is currently consulting in the field of medicine that is relevant to the plaintiffs’ claims, concluding “the trial court was not required to rigidly apply the qualifications test by assuming that [the plaintiffs’ expert] consults only with lawyers and to assume that he does not consult with doctors or other health care providers on matters involving perinatal medicine.”
The Texas Appellate Court further held that even if the information the trial court had about the plaintiffs’ expert’s consulting work was incomplete, the Act gave the trial court the right to excuse the active practice requirement if, “under the circumstances, the court determines that there is a good reason to admit the expert’s testimony.” The Texas Appellate Court held that the trial court did not abuse its discretion by relaxing the active practice requirement under the circumstances in this case (the trial court specifically found that the exception applied, basing its decision on the plaintiffs’ expert’s experience training others and teaching in the field of medicine that is relevant to the issues in dispute).
Source Hendryx v. Duarte, No. 09-18-00070-CV.
If you or your baby suffered a birth injury (or worse) during labor and/or delivery in Texas or in another U.S. state, you should promptly find a birth injury lawyer in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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