The Court of Appeals Eighth District of Texas El Paso, Texas (“Texas Appellate Court”) issued an opinion on April 19, 2017 in which it held that the trial court did not abuse its discretion in finding the plaintiff’s medical malpractice expert unqualified to express some of the opinions that he did, or for those he could have expressed, the excluded opinions did not establish a viable claim (and thus any error in excluding it was harmless).
The Underlying Factual Allegations
The plaintiff went to the defendant surgeon for a bilateral breast reduction to ease her neck, shoulder, and back pain (the plaintiff is 5’6″ feet tall and had a forty-eight inch quadruple D bra size). Because so much breast tissue needed to be removed, the appropriate procedure involved a “free nipple graft” in which the nipple and areola are completely cut away, and once breast tissue is removed, the nipple and areola are then grafted back onto the remaining breast. An inherent risk associated with this procedure is re-establishing adequate blood flow to the nipple complex.
The plaintiff alleged in her Texas medical malpractice lawsuit that the breast tissue around her nipple complex became necrotic after surgery, and that an infection developed in the dead or dying tissue. She was subsequently hospitalized during which she underwent several surgical procedures to remove necrotic tissue that left her effectively with a bilateral mastectomy.
The Texas Medical Liability Act (“TMLA”) (TEX.CIV.PRAC.& REM.CODE ANN. § 74.351(a)) requires that the plaintiff file a qualifying expert report. In this case, the plaintiff’s sole medical expert is licensed to practice medicine in Florida and is board certified by the American Board of Plastic Surgery, having held that certification since 1980. He was previously board certified in surgery, but allowed that certification to lapse. He maintains an active practice in plastic surgery with the majority of his cases involving re-contouring of the torso, and half of those involving breast procedures.
Following the plaintiff’s expert’s deposition, the defendants challenged his qualifications. The trial court struck the plaintiff’s expert’s opinions and granted the defendants’ motions for summary judgment/dismissal. The plaintiff appealed.
The Texas Appellate Court stated that an expert must meet the basic qualification requirements found in TEX.R.EVID. 702 (the expert must be qualified “by knowledge, skill, experience, training, or education.”). The focus is on whether the expert has the knowledge, skill, experience, training, or education regarding the specific issue before the court which qualifies the expert to give an opinion on that very subject.
The Texas Appellate Court noted that the plaintiff’s expert testified during his deposition that he performs two to three plastic surgeries a week, and a third of these procedures involve the breasts. Of those, he does two to three breast reductions a year. However, the last free nipple graft case he performed was about seven years before his deposition. He had trained under another physician who published and lectured on the free nipple graft technique, but that training was in the 1970’s. He had completed about two dozen free nipple graft breast reduction cases in his thirty-year career.
The Texas Appellate Court stated that the trial court had no way of knowing if the plaintiff’s expert verified through medical literature that his last experience with the free nipple graft procedure was still relevant as of the time of the plaintiff’s procedure. The doctor himself never testified that his knowledge of the procedure was up to date. The Texas Appellate Court held, “we cannot say the trial court abused its discretion in striking the procedure-specific opinions based on the staleness of the expert’s knowledge.”
With regard to whether the plaintiff’s expert was qualified to opine that the defendants breached the standard of care for a surgeon in post-surgical care, and whether the claimed breach was the proximate cause of any harm to the plaintiff, the Texas Appellate Court stated that the plaintiff’s expert was qualified in the area of post-surgical follow up of a patient having a breast procedure (the record showed that the plaintiff’s expert regularly did surgical procedures, which require post-surgical wound checks). Nonetheless, the expert’s testimony regarding any breach by the defendants during a particular post-surgical visit would not have supported a verdict under the facts of this case and thus even if the plaintiff’s expert were qualified to provide the excluded opinions, the plaintiff has shown no reversible error (the expert’s testimony about the plaintiff’s specific circumstances was limited to possibilities, and testimony about possibilities would not have supported a verdict).
Source Johnson v. Harris, No. 08-15-00149-CV.
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