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Address: 3811 Turtle Creek
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| Texas Medical Malpractice |
Medical Malpractice in Texas
George (Tex) Quesada
Sommerman& Quesada, L.L.P.
3811 Turtle Creek Boulevard, Suite 1400
Dallas, Texas 75219-4461
214/720-0720 (Telephone)
214/720-0184 (Facsimile)
Thanks to Caroline McCracken
March, 2004
Table of Contents
Introduction 1
Who is a Healthcare Provider? 2
A. Old Law Health Care Providers 2
B. New Law Health Care Providers 3
Liability of Healthcare Providers 4
A. Direct Liability and Vicarious Liability 4
B. Vicarious Liability Joint Ventures and Ostensible Agency
5 Overview of Medical Malpractice Case Under the Texas Civil
Practices & Remedies Code 6
A. Limitations 6
B. Notice Requirements 7
C. Comparative Responsibilities 7
D. Governmental Units 8
E. Arbitration Agreements 8
Limitations on Damages 8
A. Limitations on Non-economic Damages 8
1. Physicians and Healthcare Providers 9
2. Healthcare Institutions 9
B. Damages Limitations in Wrongful Death or Survival Actions 10
C. Periodic Payments of Future Damages 10
D. Bystander Recovery 11
E. Exemplary Damages Limitations in Medical Malpractice Cases 11
Expert Testimony 12
Conclusion 18
Introduction
Medical malpractice suits are in a class of their own, often made up of the stuff of headlines and Hollywood. Yet despite the fascinating content that grabs the publics attention, medical malpractice is a serious and important area of the law. When one is forced to see a physician, there is a reasonable expectation of superior treatment of the ailment.
Medical malpractice is the area of personal injury law that applies when a doctor or other healthcare providers negligence results in damages or harm to the patient. Laws governing medical malpractice are designed to protect the patients rights to receive compensation for injuries inflicted due to negligence.
This paper provides a general overview of medical malpractice in Texas and highlights some of the significant changes to medical malpractice actions, including the changes to definitions and to damages limits. In 2003, the Texas legislature significantly changed the scope of damages available in medical malpractice actions. House Bill 4 Article 10 repealed the Medical Liability and Insurance Improvement Act of Texas, Article 4590i, Texas Revised Civil Statutes, but recodified many of its provisions, with changes, in Section 74 of the Civil Practice & Remedies Code. In addition to changing the liability limits, a number of definitions have changed or been expanded, including health care liability claim, health care provider, and physician.
Who Is a Healthcare Provider?
A. Old Law Health Care Providers
The Texas legislature broadly expanded the definition of healthcare provider, specifically listing those that are now included in this class. TEX. CIV. PRAC. & REM. CODE 74.001(12)(A). Under Article 4590i, 1.03, health care providers were:
1. Any Person, Partnership, Professional Association, Corporation, Facility, or Institution;
2. Duly Licensed or Chartered by the State of Texas to Provide Healthcare as a Registered Nurse, Hospistal, Dentist, Podiatrist, Pharmacist, or Nursing Home;
3. Or an Officer, Employee, or Agent Thereof Acting in the Course and Scope of His Employment.
4. Exclusions by Case Law:
1. Licensed mental health counselor. Grace v. Colorito, 4 S.W.3d 765 (Tex. App. Austin 1999, writ denied);
2. Psychologist. Lenhard v. Butler, 745 S.W.2d 101 (Tex. App. Fort Worth 1988, writ denied);
3. Physical therapists yes and no;
a. Yes Flores v. Center for Spinal Evaluation and Rehab, 865 S.W.2d 261 (Tex. App. Amarillo 1993, no writ);
b. No Terry v. Barrineuvo, 961 S.W.2d 528 (Tex. App. Houston [1st Dist.] 1997, no writ);
4. Emergency ambulance services. Townsend v. Catalina Ambulance Company, 857 S.W.2d 791 (Tex. App. Corpus Christi 1993, no writ); Schultz v. Rural/Metro Corporation of New Mexico-Texas, 956 S.W.2d 757 (Tex. App. Houston [14th Dist.] 1997, no writ); Moore v. Trevino, 94 S.W.3d 723 (Tex. App. San Antonio 2002, writ refd.);
5. Veterinarians. Neasbitt v. Warren, D.V.M., 22 S.W.3d 107 (Tex. App. Fort Worth 2000, n.w.h.)(as long as they are just treating cows, horses, and dogs);
6. Dialysis centers. Finley v. Steenkamp, 19 S.W.3d 533 (Tex. App. Fort Worth 2000, n.p.h.);
7. Blood banks. J. K. & Susie L. Wadley Research Institute and Blood Bank v. Beeson, 835 S.W.2d 689 (Tex. App. Dallas 1992, writ denied);
8. Chiropractors, optometrists, and independent radiation therapy centers;
a. No appellate cases directly address the issue, but two cases address their legal status in dicta;
(1) Lenhard v. Butler, 745 S.W.2d 101, supra at 105: The statute [4590i] goes so far as to expressly list podiatrists, nurses, dentists, and pharmacists, while failing to include other professionals such as a chiropractor, optometrist, or psychologist (emphasis supplied.
(2) See also Terry v. Barrinuevo, at 530-531.
9. Other possible excluded providers of healthcare may have been midwives, physician assistants, licensed vocational nurses, athletic trainers, those with various Ph.D.s and social-psychotherapists when working independently and not as employees or agents of qualified healthcare providers, particularly hospitals and physicians;
Also excluded were alternative healthcare treatment centers such as day spas, herbal health centers, acupuncturists, nail salons, hypnotists, massage therapists, meditation therapists, and fitness or nutrition centers, unless associated with a physician or other healthcare provider as an employee or agent.
B. New Law Health Care Providers
Now, under TEX. CIV. PRAC. & REM. CODE 74.001(12)(A) the new healthcare providers are:
A. Any person, partnership, professional association, corporation, facility or institution who/which is;
B. Duly licensed, certified, registered, or chartered by the State of Texas to provide healthcare (emphasis supplied);
C. Including:
1. A registered nurse;
2. A dentist;
3. A podiatrist;
4. A pharmacist;
5. A chiropractor;
6. An optometrist;
7. A healthcare institution (emphasis supplied).
D. The term includes an officer, director, shareholder, member, partner, manager, owner, or affiliate of a healthcare provider or physician and an employee, independent contractor, or agent of a healthcare provider or physician acting in the course and scope of the employment or contractual relationship (emphasis supplied);
E. Healthcare institution definition broadly expanded to include:
1. Ambulatory surgical center;
2. Assisted living facility licensed under Chapter 247, Health & Safety Code;
3. Emergency medical services provider;
4. Health services district created under Chapter 287, Health & Safety Code;
5. Home and Community support services agency;
6. Hospice;
7. Hospital;
8 Hospital system;
9. Intermediate care facility for the mentally retarded or a home and community based services waiver program for persons with mental retardation;
10. A nursing home; and
11. An end stage renal disease facility licensed under 251.011, Health & Safety Code.
Liability of Healthcare Providers
A. Direct Liability and Vicarious Liability
Under Article 4590i, 1.03, a plaintiffs cause of action against a healthcare provider or physician included treatment, lack of treatment, or other claimed departure from accepted standards of medical care or healthcare or safety that proximately resulted in an injury to or death of the patient, whether the patients claim or cause of action sounds in tort or contract.
Now, a Plaintiff has a cause of action against a healthcare provider or physician under the new TEX. CIV. PRAC. & REM. CODE 74.001(13) for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or healthcare, or safety, or professional or administrative services directly related to healthcare that proximately results in injury to or death of a claimant, whether the claimants claim or cause of action sounds in tort or contract (emphasis supplied).
Day spas, herbal health centers, acupuncturists, nail salons, hypnotists, massage therapists, mediation therapists, and fitness or nutrition centers may still be sued outside of TEX. CIV. PROC. & REM. CODE. 74.001 if they are not employees, independent contractors, or agents of a healthcare provider or a physician acting in the course and scope of the employment or contractual relationship.
B. Vicarious Liability Joint Ventures and Ostensible Agency
Healthcare providers can also be liable for another healthcare providers negligent treatment of a patient through the vicarious liability theory joint enterprise. In St. Joseph Hospital v. Wolff, 94 S.W.3d 513 (Tex. 2002), the Supreme Court clarified the elements of a joint venture. The Supreme Court of Texas states that the defendants must: (1) agree to a common purpose; (2) have a community of pecuniary interest; and (3) have an equal right of control over the enterprise or project formed to carry out that purpose. This definition is different from the PJC version. In St. Joseph, a resident was enrolled in the residency program at St. Joseph Hospital, which had an agreement with the Central Texas Medical Foundation to provide patient care at an Austin area hospital. The resident committed medical malpractice while treating a patient at the Austin hospital. The court found that the patient could recover nothing from St. Joseph Hospital because the relationship between St. Joseph and the Foundation did not satisfy the elements of joint enterprise. Id. at 534.
Furthermore, the Supreme Court of Texas clarified the elements a claimant needs to prove in order to hold a hospital liable for an independent contractors medical malpractice based upon the theory of ostensible agency in Baptist Memorial Hospital System v. Sampson, 946 S.W.2d 945, 949 (Tex. 1998):
(1) Plaintiff had a reasonable belief that the physician was the agent or employee of the hospital;
(2) Such belief was generated by the hospital affirmatively holding out the physician as its agent or employee or knowingly permitting the physician to hold himself out as such; and
(3) Plaintiff justifiably relied on the representation.
IV. Overview of Medical Malpractice Case Under the Texas Civil Practices & Remedies Code
A. Limitations
As a general rule, a medical malpractice action may not be brought more than two years from the date of the breach or tort or from the completion of treatment. TEX. CIV. PRAC. & REM. CODE 74.251(a). If an injury results from a negligent course of treatment, rather than a specific instance of negligence, the limitations period begins on the last date of treatment, but if the precise date of the breach or tort is ascertainable, the limitations period begins on that date. Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995). Minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Id. at 74.251(b).
B. Notice Requirements
Texas law states that, no later than 120 days after the date the claim was filed, a claimant must serve on each party or their attorneys an expert report. Id. at 74.351(a). If this is not timely done the court must dismiss the claim and award attorneys fees to the defendant. Id. at 74.351(b). Be aware that there is an entire body of law directed to the innocuously worded predecessors to this statute (refer to Park Surveys article).
C. Comparative Responsibilities
Under Texas law, the theory of modified comparative negligence applies to tort claims, including claims of medical malpractice, and the result is that where the percentage of responsibility is greater than 50% a claimant may not recover damages. Id. at 33.001. If the claimant is not barred from recovery, then the court will reduce the amount of damages to be recovered by a percentage equal to the claimants percentage of responsibility. Id. at 33.012. The comparative negligence theory does not apply to claims for exemplary damages. Id. at 33.002.
A defendant is liable to a claimant only for the percentage of the awarded damages equal to that defendants percentage of responsibility in connection with the personal injury or death. Id. at 33.013(a). In addition, each liable defendant is jointly and severally liable for the amount of damages awarded to the claimant under Section 33.012 if the percentage of responsibility attributed to the defendant is greater than 50 percent. Id. at 33.013(b).
When a defendant who is jointly and severally liable pays a greater percentage of the damages than that for which he is liable, that defendant has a right of contribution against each other liable defendant who has not paid the percentage of damages they are liable for. Id. at 33.015(a). Additionally, if a liable defendant does not pay the portion of damages required by his percentage of responsibility, that amount shall be paid by the remaining defendants who are jointly and severally liable in accordance with their percentage of responsibility. Id. at 33.015(c). There is no right of contribution against any settling person. Id. at 33.015(d).
D. Governmental Units
To a certain extent, Texas has waived its sovereign immunity in medical malpractice suits. The governmental unit may be liable for personal injury or death caused by the negligence of an employee acting within the scope of his employment if the governmental unit would, were it a private person, be liable under Texas law. TEX. CIV. PRAC. & REM. CODE 101.021. Texas law does not waive the governments immunity regarding exemplary damages. Id. at 101.024.
E. Arbitration Agreements
In Texas, it is not required that medical malpractice claims be referred to arbitration, but the legislature has authorized each county to adopt alternative dispute resolution systems. Id. at 152.002. A healthcare provider may not request or require a patient to execute an agreement to arbitrate a healthcare liability claim unless the agreement meets statutory standards set out for giving notice that the agreement is invalid unless it is also signed by an attorney of the patients own choosing. Id. at 74.451(a).
Finally, there is no cap on the amount of attorneys fees that an attorney may receive in a medical malpractice suit.
Limitations on Damages
A. Limitations on Non-economic Damages
The legislature limited non-economic damages that claimants may recover for civil health care liability claims against physicians, health care providers, and health care institutions. Id. at 74.301-303. Non-economic damages is defined as damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages. Id. at 74.001(20), incorporating by reference 41.001(12). Note that the economic portions of compensatory damages remain unaffected by these limits. Further, a single claimant subject to the limitation may include multiple persons, including estates. Id. at 74.001(a)(2).
It is also notable that unlike Article 4590i, Section 74 does not contain any requirement subjecting the limits to consumer price index adjustments.
1. Physicians and Health Care Providers
As a general rule, civil liability of physicians and other health care providers, other than a health care institution, may not exceed a total of $250,000 for non-economic damages. This limit applies for each claimant, regardless of the number of physicians or health care providers the claimant has sued or the number of separate causes of action on which the claim is based. Id. at 74.301(a).
2. Health Care Institutions
Similarly, each claimant is limited to a maximum of $250,000 of non-economic civil damages against a single health care institution. Id. at 74.301(b). Where a final judgment is rendered against multiple health care institutions, the damages for each health care institution shall not exceed $250,000 per claimant, and the total non-economic liability for all health care institutions is limited to $500,000 per claimant. Id. at 74.301(c).
B. Damages Limitations in Wrongful Death or Survival Actions
Damages for civil liability in wrongful death or survival actions against a physician or health care provider are limited to $500,000 per claimant, as adjusted according to fluctuations of the consumer price index (the cap is approximately $1.3 million as of 2004). This limit encompasses all damages (including exemplary damages) except expenses for necessary medical, hospital, and custodial care received before judgment or required in the future for treatment of the injury. Id. at 74.303(a)-(c). Jurors are instructed not to consider whether any damages limits apply. Id. at 74.303(e)(1).
C. Periodic Payments of Future Damages
The 2003 legislation rewrites longstanding Texas law requiring a lump sum payment of damages, including damages for future losses. If a defendant physician or health care provider or claimant so requests, the court shall order that future medical, health care, or custodial services awarded be paid in whole or in part in periodic payments. Id. at 74.503(a). Additionally, if the physician, health care provider, or claimant so request, the court may order that other (presumably non-economic) future damages be paid in periodic payments as well. Id. at 74.503(b).
The court will specify the dollar amount of periodic payments for future damages. Id. at 74.503(c). Note that this periodic payment option is available only in actions in which the present value of the award of future damages, as determined by the court, equals or exceeds $100,000. Id. at 74.502.
The option of electing periodic payments of future damages may be unavailable if the defendant(s) are inadequately insured. In such cases, the court may require the defendant to provide evidence of financial responsibility to assure full payment of the awarded damages before allowing periodic payments. Id. at 74.505(a).
D. Bystander Recovery
Bystander recovery is not available in medical malpractice cases for public policy reasons. Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997). The rationale is that the very nature of medical treatment is often traumatic to the layperson. Even when a medical procedure is beneficial to the patient, it may shock the senses of the ordinary bystander. A bystander may not be able to distinguish between beneficial medical treatment and harmful conduct. Id. Moreover, a physicians primary duty is to the patient, not the patients relatives. Id.
E. Exemplary Damages Limitations in Medical Malpractice Cases
Under Article 4590i, 11.02 (a), of the Texas Revised Civil Statutes Annotated, the limit of civil liability for damages of a physician or health care provider is limited to an amount not to exceed $500,000. Excluded are damages awarded on a health care liability claim for the expenses of necessary medical, hospital, and custodial care received before judgment or required for future treatment. TEX. REV. CIV. STAT. ANN., Art. 4590i 11.02 (b).
This cap is adjusted up or down in accordance with the increase or decrease of the consumer price index with respect to the amount of the index on the effective date of this sub-chapter. Id. at 11.04. The cap on damages was held to be constitutional in a death action under the Texas Wrongful Death Act. Rose v. Doctors Hospital, 801 S.W.2d 841 (Tex. 1990) (wrongful death actions are created by statute and not subject to the open courts guarantee). Also, in a wrongful death case based on a health care liability claim, the damage cap is calculated on a per defendant basis. Id.
The issue of whether TEX. REV. CIV. STAT. Art. 4590i, 11.02(a) or the Texas Civil Practices Code Article 41.007, provides a statutory basis for capping exemplary damages awarded in cases involving health care liability claims was considered in Horizon Healthcare Corporation v. Auld, 2000 WL 1199263, 43 Tex. Sup. Ct. J. 1151 (August 24, 2000) (No. 99-0169). The case began as a common law negligence action involving nursing home negligence but was converted into a statutory survival action upon the death of the plaintiff. The jury found Horizon liable for actual damages in the amount of $2,371,000 ($1,750,000 physical pain and mental anguish, $150,000 disfigurement, $250,000 impairment, $221,000 medical care and expenses) and exemplary damages of $90,000,000. The trial court reduced Aulds actual damages under Article 4590i of the Medical Liability Insurance Improvement Act to $1,541,203.13, plus prejudgment interest of $211,968.21, holding that exemplary damages were not subject to being capped by the Act, but reduced to four times the actual damages before they were capped at $9,483,766.92. The court of appeals affirmed. The Supreme Court agreed with the lower courts and stated that based on its legislative history, 4590i does not cap exemplary damages awarded in a health-care liability claim; punitive damages should therefore not be included when capping the plaintiffs damages under Article 4590i. However, since the case was filed prior to September 1996, the former capping provisions in TEX. CIV. PRAC. & REM. CODE 41.007 would limit exemplary damages to four times actual damages.
Today, in a similar situation, under the current 41.007, a plaintiff would recover the greater of two times economic damages ($442,000) plus an amount equal to non-economic damages found by the jury not to exceed $750,000 ($750,000) for a total of $1,192,000 a drastic change in the law.
Expert Testimony
In a medical malpractice suit, a person may qualify as an expert witness regarding whether a physician departed from the accepted standards of medical care only if that witness is a physician who:
A. Is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;
B. Has knowledge of the accepted standards of medical care for the diagnosis, care, and treatment of the illness, injury, or condition involved in the claim; and
C. Is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. TEX. CIV. PRAC. & REM. CODE 74.401(a).
In a suit involving a health care liability claim against non-physicians, a person may qualify as an expert witness on the issue of whether the health care provider departed from the accepted standards of care only if the person:
A. Is practicing healthcare in the field of practice that involves the same type of care or treatment that was delivered at the time the testimony is given or was practicing that type of healthcare at the time the claim arose;
B. Has knowledge of accepted standards of care for healthcare providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
C. Is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. Id. at 74.402(b).
Similarly, in a suit involving a healthcare liability claim against a physician or healthcare provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure from the accepted standards of care and the injury or damages claimed if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence. Id. at 74.403(a).
An expert witness is not precluded from being qualified as an expert witness just because he does not practice in the specialized areas that the defendants do. Blan v. Ali, 7 S.W.3d 741, 745 (Tex.App. - Houston[14 Dist.] 1999).
This Texas court found that in a case involving the proper treatment of an infection a physician who was board certified in the treatment of infections could testify as an expert witness even though he had never practiced in the areas in which the defendants practiced. This was because the case dealt directly with the proper treatment of an infection.
Experts are expensive and to avoid the financial drain of having an expert disqualified just before trial, the attorney that hires the expert must determine the admissibility of that experts testimony. Both federal and Texas state courts limit the use of expert witnesses. See Fed. R. Evid. 702; Tex. R. Evid. 702. Rule 702 clearly calls for some regulation of the subjects and theories an expert testifies about, stating If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact or issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise. Fed. R. Evid.702. Fed. R. Evid. 702 is identical to the Texas rule except for one comma.
The federal standard for the admissibility of expert testimony was set in the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589 (1993). In Daubert, the Supreme Court held that the former test for admissibility was superseded by the 1975 adoption of the Federal Rules of Evidence, specifically Rule 702, and that all scientific testimony or evidence must be (1) relevant and (2) reliable in order to be admissible. See Id. at 589. It is the judge who acts as the gatekeeper of what testimony is admissible.
First, the expert testimony must be relevant, defined as helping the trier of fact to understand or determine a fact or issue. Testimony is permitted when the experts knowledge and experience...are beyond that of the overage juror. Dunnington v. State, 740 S.W.2d 896, 898 (Tex. App. - El Paso 1987, pet. refd); see also Jenkins v. Henningan, 298 S.W.2d 905, 909 (Tex. Civ. App. - Beaumont 1957, writ refd n.r.e.) (referring to knowledge superior to that possessed by the ordinary juror). The helpfulness requirement does not mean that an expert cannot testify about matters within the jurys experience; an expert may aid the jury in understanding even familiar matters if the experts experience or training provides a more thorough or refined understanding than ordinary experience provides. Swearingen v. Swearingen, 578 S.W.2d 829, 832 (Tex. Civ. App. - Houston [1st Dist.] 1979, writ dismd) (stating that an expert has a thorough knowledge surpassing that of jurors).
Second, the expert testimony must be reliable. Daubert sets forth the following non-exhaustive list of general considerations for courts to consider when contemplating the reliability of a theory or methodology:
A. Whether it can be or has been empirically tested;
B. Whether it has been subject to peer review and publication;
C. Whether its potential rate of error is known or has been accounted for;
D. Whether standards controlling its operation exist; and
E. Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community. Id. at 580.
In Texas, the standards that have been set for scientific expert testimony parallel, and sometimes exceed, the Daubert factors. In E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), the Texas Supreme Court found that in addition to showing that an expert witness is qualified, Rule 702 also requires that proponent to show that the experts testimony is relevant to the issues in the case and is based upon a reliable foundation. It is especially important that trial judges scrutinize proffered evidence for scientific reliability when it is based upon novel scientific theories.... Id.
Robinson adopted the explanation given by the Court in Daubert regarding reliability in Federal Rule of Evidence 702 as the interpretation of Texas Rule of Evidence 702. The party offering the expert testimony must establish its reliability, showing it is grounded in the methods and procedures of science. Like Daubert, Robinson set forth a non-exclusive list of factors that a court must consider when evaluating the reliability of scientific testimony:
1. Testability. The theory must be capable of being tested and must have actually been tested. This is the most important factor. Dukes v. Illinois Central R. Co., 934 F. Supp. 939, 948 (N.D. Ill. 1996).
2. Peer Review and Publication. This type of review increases the likelihood that substantive flaws in methodology will be detected. Daubert, 509 U.S. 593. The mere fact that a theory has been published does not establish that theorys reliability. True peer review is subjecting the article to real scrutiny, since the review of scientific writings prior to publication is often not demanding.
3. Rate of Error and Proper Controls. This factor does not apply when the testimony involved theories and not any particular technique. Sorensen by and Through Dunbar v. Shaklee Corp., 31 F.3d 638, 649 (8th Cir. 1994).
4. General Acceptance. A known theory or technique that has gained only minimal support within the scientific community should be viewed with skepticism. See United States v. Martinez, 3 F.3d 1991, 1997 (8th Cir. 1993), cert. denied, 510 U.S. 1062 (1994). That expert testimony be consistent with alread accepted theories is a significant factor because Scientific knowledge tends to be cumulative and progressive, and a hypothesis that is not consistent with accepted theories should be regarded with great caution, whether or not the hypothesis ultimately proves true. In re TMI II, 911 F. Supp. at 787.
5. Non-Judicial Uses and Subjective Interpretation. This factor considers whether the research and opinions were carried out and formed solely for litigation, or whether the testimony grew naturally out of the experts own independent research. See Robinson, 923 S.W.2d at 559.
Recent Cases
In Brownsville Pediatric Assn v. Reyes, 68 S.W.3d 184 (Tex.App.- Corpus Christi 2002), the Supreme Court of Texas held that Rule of Evidence 702 and the Daubert standard applies to both the defendants and plaintiffs expert witnesses. This includes the defendants experts who may not have the burden of proof.
In Helm v. Swan, 61 S.W.3d 493 (Tex.App.- San Antonio 2001), the expert witnesses testified that there was a breach in the standard of care when the physician did not initiate prompt fluid resuscitation, resulting in severe pancreatitis. There is no dispute among physicians that prompt fluid resuscitation is the best course of action to avoid severe pancreatitis, but there were no studies regarding the effect of delayed fluid resuscitation because no doctors would intentionally delay that treatment. The court found that the experts testimony not reliable because of the lack of studies and because, even with prompt treatment, the patient still may have developed sever pancreatitis.
Finally, the Texas Supreme Court recognized that the Robinson factors may not apply to certain types of expert testimony. Gross v. Burt, No. 2-01-206 (Tex.App. - Ft. Worth, Feb. 26, 2004)(not yet reported). Although a reliable basis for an experts opinion must still exist in these cases, experience may prove a sufficient basis for expert testimony unless the analytical gap between the data and the testimony is too great. Id. If the expert has any personal knowledge, experience, or scientific data supporting his theory, the testimony may be allowed. Id. A physicians belief that a certain treatment would or would not be effective is not sufficient basis for the court to let the expert testify, even when a theory could not be tested because human testing would be immoral.
Id.
VIII. Conclusion
This paper has touched, generally, on what a medical malpractice suit in Texas involves. This is not meant to be an exhaustive study, yet a practical and thorough knowledge of Texas law on medical malpractice is something that each attorney should have in their possession. The constant changes in the law demand that litigators stay informed of the developments.
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