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

2. INITIAL CONSIDERATIONS

3. Above all else, testifying expert must aid the jury.

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

5. Medical negligence claims require expert testimony: Standard of Care Causation

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

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

8. CATEGORIES OF EXPERTS

9. Testifying Experts

10. Retained Experts

11. Consulting Only Experts

12. Consulting Plus Experts

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

14. Dual Capacity Expert

15. Specially Employed Expert

16. Non-retained - Percipient Experts

17. Parties As Experts

18. Rebuttal Experts

19. Medical/Psychological Adverse Examiners

20. Ch. 74 EXPERT REPORTS

21. Threshold requirement only.

22. 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.

23. Expert Qualifications

24. Standard of Care Causation

25. 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.

26. 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
(Tex. App. – Beaumont 2019)|
Consulting

27. 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.

28. Broders v. Heise

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

30. 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)

31. EXPERT DISCOVERY TOOLS

32. Tex. R. Civ. P

33. Disclosure

34. Timeliness Completeness Specific

35. Ersek Rule

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

37. Rebuttal Experts

38. Tex. R. Civ. P Sanctions

39. Death Penalty Sanctions

40. Depositions Oral and Written Questions

41. Reports Major difference between Texas and federal practice.

42. What if Plaintiff does not produce reports?

43. Adverse Examination Reports

44. ADVERSE MEDICAL/PSYCHOLOGICAL EXAMINATIONS

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

46. SUPPLEMENTATION AND REFINEMENTS

47. New opinions v. refinements of existing opinions

48. Federal v. State

49. 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

50. Death Penalty Sanctions Disfavored, but available.

51. SCOPE OF DISCOVERY

52. TEX. R. CIV. P 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.

53. 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, WL (Tex. App.-Tyler 2009)
In re Fast-Trak Const., Inc., 307 S.W.3d 526
(Tex. App.-Dallas, 2010).

54. In re Jourdanton Hospital Corporation,
Not Reported in S.W.3d, 2014 WL
(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.”

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

56. Reports from other litigation Drafts of the report

57. MOTIONS FOR PROTECTION

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

59. 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 (Tex. App. – San Antonio 2014)

60. 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)

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

62. RESPONSIBLE THIRD PARTY PRACTICE

63. 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.

64. DE-DESIGNATION AND CROSS DESIGNATION

65. 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.

66. Daubert/Robinson

67. 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

68. 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.

69. TRIAL

70. 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

71. UPDATE Windrum v. Kareh, M. D. 2019 WL 321925 (Tex
UPDATE Windrum v. Kareh, M.D WL (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.