The Expert in Medical Malpractice Cases MASTER OF THE UNIVERSE The Expert in Medical Malpractice Cases 2019 PAUL N. GOLD AVERSANO & GOLD HOUSTON, TEXAS

INITIAL CONSIDERATIONS

Above all else, testifying expert must aid the jury.

An expert is unneeded on matters that are common knowledge or that are common sense.

Medical negligence claims require expert testimony: Standard of Care Causation

The expert must be qualified to offer opinions in the area(s) on which the expert is designated.

The expert’s opinions must be fact based (not conclusory), scientifically reliable, and relevant to the facts in the particular case.

CATEGORIES OF EXPERTS

Testifying Experts

Retained Experts

Consulting Only Experts

Consulting Plus Experts

In-house expert. Attorney/client privilege not waived. In-House Experts In re City of Dickinson 2019 WL 638555 (Tex. 2019) In-house expert. Attorney/client privilege not waived.

Dual Capacity Expert

Specially Employed Expert

Non-retained - Percipient Experts

Parties As Experts

Rebuttal Experts

Medical/Psychological Adverse Examiners

Ch. 74 EXPERT REPORTS

Threshold requirement only.

Shall not be used in discovery or referred to. Not admissible. Shall not be used in discovery or referred to. Waiver if “used” by the claimant.

Expert Qualifications

Standard of Care Causation

Assist the jury. “Practicing medicine Assist the jury. “Practicing medicine.” Need not be involved in patient care. Consulting, training. Court discretion and latitude, criteria notwithstanding.

Court discretion to find an exception to the criteria for practicing medicine. Deborah Hendryx and KPH-Consolidation, Inc. d/b/a Kingwood Medical Center v. Duarte 2019 WL 1065052 (Tex. App. – Beaumont 2019)| Consulting

DISTINCTION Expert on Standard of Care need not be a physician DISTINCTION Expert on Standard of Care need not be a physician. Expert on Causation must be a physician qualified to render opinions on causation.

Broders v. Heise

PARADOX Opinion does not need to be valid or scientifically reliable, just factually based.

No Ch. 74 report requirement in federal court: Passmore v No Ch. 74 report requirement in federal court: Passmore v. Baylor Healthcare System (5th Cir. 2016)

EXPERT DISCOVERY TOOLS

Tex. R. Civ. P. 195.1

Disclosure

Timeliness Completeness Specific

Ersek Rule

Non-Retained Experts Scope of testimony defined by clinical records.

Rebuttal Experts

Tex. R. Civ. P. 193.6 Sanctions

Death Penalty Sanctions

Depositions Oral and Written Questions

Reports Major difference between Texas and federal practice.

What if Plaintiff does not produce reports?

Adverse Examination Reports

ADVERSE MEDICAL/PSYCHOLOGICAL EXAMINATIONS

Leveling the playing field In re H.E.B., 492 S.W.3d 300 (Tex. 2016).

SUPPLEMENTATION AND REFINEMENTS

New opinions v. refinements of existing opinions

Federal v. State

Expert must timely supplement deposition testimony Expert must timely supplement deposition testimony. Failure to timely supplement can result in automatic sanctions under Tex. R. Civ. P. 193.6

Death Penalty Sanctions Disfavored, but available.

SCOPE OF DISCOVERY

TEX. R. CIV. P. 192.3 Opinions and the factual data provided to or considered by a testifying expert or consulting plus expert are discoverable. Opinions of a consulting only expert are not discoverable.

Are facts known by a consulting only expert discoverable? Yes and no. Controversial Seems to depend on whether the facts are obtained as part of a protected investigation. In re Energy Transfer Partners, L.P., Not Reported in S.W.3d, 2009 WL 1028056 (Tex. App.-Tyler 2009) In re Fast-Trak Const., Inc., 307 S.W.3d 526 (Tex. App.-Dallas, 2010).

In re Jourdanton Hospital Corporation, Not Reported in S.W.3d, 2014 WL 3745447 (Tex. App. – San Antonio 2014) Designating risk manager as testifying expert. “There is a distinction between a report prepared in anticipation of litigation and one provided to or prepared by or for an expert in anticipation of trial or deposition testimony. [citations omitted] A report provided to an expert for the purpose of preparing the witness to provide expert opinion testimony is discoverable, while one provided solely for the purpose of evaluating potential claims in anticipation of possible future litigation is not.”  

BIAS In re Ford, 427 S.W. 3d 396 (Tex. 2014)

Reports from other litigation Drafts of the report

MOTIONS FOR PROTECTION

In re Garza, 544 S.W.3d 836 (Tex. 2018)

In re Christus Spohn Hosp. Kleberg, 222 S. W. 3d 434, 445 (Tex In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 445 (Tex. 2007, orig. proceeding) work product was not protected if provided to or reviewed by a testifying expert. COMPARE In re Jourdanton Hospital Corporation, Not Reported in S.W.3d, 2014 WL 3745447 (Tex. App. – San Antonio 2014)

While the work product exemption may be waived, courts have found that the attorney/client privilege is not waived. In re Segner, 441 S.W.3d 409 (Tex. App. – Dallas 2013)

In-house expert. Attorney/client privilege not waived. UPDATE In re City of Dickinson 2019 WL 638555 (Tex. 2019) In-house expert. Attorney/client privilege not waived.

RESPONSIBLE THIRD PARTY PRACTICE

ExxonMobil Corporation v. Pagayon, 467 S.W.3d 36, 51-53 (Tex. App. – Houston [14th Dist.] 2015) rev’d on other grounds, Pagayon v. ExxonMobil Corporation, 536 S.W.3d 499 (Tex. 2017) Emergency room physician may be designated for violation of standard of care, but still must be qualified, reliable expert testimony of a violation of the standard of care and causation to sustain the designation for trial.

DE-DESIGNATION AND CROSS DESIGNATION

No bargains to suppress evidence De-designation not available if other testifying experts have reviewed or relied upon the testifying expert’s opinions prior to that expert being de-designated.

Daubert/Robinson

No Conclusory Opinions Testimony Must Be Relevant And Reliable No Analytical Gap Reliable Methodology Bases Of Opinion Must Be Reliable Non-exclusive Factors - Flexibility Non-scientific – Experience May Be Sufficient Testimony Must Be Based On Reasonable Probability Rule Out Other Likely Causes Or Factors

Application of Daubert/Robinson All experts Treating physicians Defendant physicians? Learned Treatises Is a conclusory acknowledgement that an article is a “learned treatise” really enough? Diagnoses and prognoses in medical records Differential diagnosis is an accepted methodology, provided general causation is established. Must demonstrate differential diagnosis methodology. Just saying “I used a differential diagnosis” may not cut it.

TRIAL

Basic Guidelines One Party May Designate and Call Another Party’s Expert An Expert May Rely On But Cannot Quote Inadmissible Evidence An Expert’s Report Is Not Admissible, At Least Regarding Opinions [Schedules and Charts] An Expert May Not Testify About Credibility Of Other Witnesses An Expert May Be Impeached By Prior Testimony and Finances A Court Has Discretion To Limit Cumulative Expert Witnesses On A Topic or Issue

UPDATE Windrum v. Kareh, M. D. 2019 WL 321925 (Tex UPDATE Windrum v. Kareh, M.D. 2019 WL 321925 (Tex. 2019) Although the bases for Dr. Parrish's testimony could have been better, we hold that Dr. Parrish's testimony as to the standard of care and Dr. Kareh's breach of that standard of care “did not simply state a conclusion without any explanation or ask the jurors to take [his] word for it” and therefore was not conclusory.