Texas Supreme Court: How to meet the Superiority Requirement for medical malpractice expert testimony

Texas law governing medical malpractice cases requires plaintiffs to prove that the negligence alleged in a lawsuit proximately caused injuries and damages to the patient. The standard of proof is called reasonable medical probability, which means more likely than not. This type of evidence requires testimony from medical expert witnesses.

As a Houston, Texas medical malpractice lawyer, I work with medical expert witnesses every day. Just this week, I have discussed cases with physicians specializing in critical care, wound care, neurology, general surgery, and anesthesiology—and it is only Tuesday!

The difficulty and level of attention required to obtain this evidence for plaintiffs depends on the facts of each case.

If there is only one reasonable cause, then it is relatively straightforward for the medical expert to connect the dots. When there are multiple potential causes, though, it is more challenging. This is where an experienced medical malpractice attorney is of great benefit to a plaintiff.

Two Texas Supreme Court opinions provide a roadmap on how plaintiffs can navigate through multiple potential causes for injuries or damages, in what it has termed the “superiority requirement.”

Meeting the Superiority Requirement

Last week, the Texas Supreme Court released a major opinion in the case styled Debra Gunn, Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, P.L.L.C. v. Andre McCoy, As Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person; No. 16-0125, Texas Supreme Court (June 15, 2018).

In Gunn, a woman in the 37th week of her pregnancy lost her baby because of placental abruption and then developed a high-risk blood-clotting disorder called disseminated intravascular coagulation (DIC). At trial, the jury found in favor of the plaintiff, awarding a large verdict and concluding that the defendants negligently caused the patient to sustain a profound brain injury.

At trial, the experts for each side offered different explanations that they believed, in reasonable medical probability, caused her injury. On appeal, the Texas Supreme Court rejected the defendants’ argument that there was insufficient evidence to support the jury verdict because, among other reasons, the plaintiff’s expert did not meet the Superiority Requirement.

The Gunn opinion discussed existing precedent regarding the Superiority Requirement. The court’s opinion in another medical malpractice case, Bustamante v. Ponte, 529 S.W.3d 447 (Tex. 2017), established that when the evidence demonstrates that “there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty.” Notably, when quoting that sentence from the Bustamante opinion, the Gunn court italicized the “plausible.”

The Gunn court then referenced another one of its prior opinions, Jelinek v. Casas, 328 S.W.3d 529 (Tex. 2010). Under Jelinek, a plaintiff’s expert must offer additional testimony when the facts in evidence support several possible conclusions—and only some of those conclusions establish that the alleged negligence caused injury to the plaintiff. In those situations, the plaintiff’s expert must offer testimony at trial as to why those conclusions are superior based on verifiable medical evidence. In other words, the expert needs to rule out the other plausible potential causes.

Analyzing the trial court testimony in the Gunn case, the Texas Supreme Court approvingly noted that the plaintiff’s attorney posed questions to his medical expert with “language lifted directly out of Jelinek.”

These questions included asking the expert head-on to explain why her theory was medically superior to the theory advanced by the defense experts. In response, the medical expert testified at length about what she perceived as gaps in the defense expert testimony, and how diagnostic testing was consistent with her theory and root out the defense theory.

Missing the Superiority Requirement

In contrast to the Gunn opinion, the Texas Supreme Court decided the Jelinek case in favor of the defendants, including on the Superiority Requirement issue.

In Jelinek, a patient was diagnosed with colon cancer and received treatments including surgery, radiation, and chemotherapy. A surgeon discovered that metastatic cancer had perforated the patient’s colon, allowing its contents to leak and cause an E. coli infection that developed into an intra-abdominal abscess (accumulation of infected fluid).

A physician ordered treatment with two powerful antibiotics, but the hospital staff failed to put an appropriate prescription form in the chart, resulting in a four-and-a-half day period when the patient received neither of the two prescribed antibiotics.

The Texas Supreme Court found that there was no direct evidence at trial that the patient suffered from an infection treatable by the two antibiotics that were mistakenly discontinued. In contrast, there was evidence that she had two other infections that accounted for all of her symptoms during that time.

At the trial court level, the plaintiffs’ medical expert testified that “in medical probability” the hospital’s negligence in discontinuing the two antibiotics caused the patient to experience additional pain and suffering.

Yet, the medical expert admitted that there was no direct evidence of an infection that could be treated by those two medications. Instead, he relied on various circumstantial indicators, including changed vital signs of fever and increased heart rate. On cross-examination, though, the medical expert conceded that these findings work equally consistent with two other infections the medical records reflect that the patient already had.

In finding against the plaintiffs, the Jelinek opinion found that when “the only evidence of the vital fact is circumstantial, the expert cannot merely draw possible inferences from the evidence and state that ‘in medical probability’ the injury was caused by the defense negligence.” Instead, the “expert must explain why the inferences drawn are medically preferable to competing inferences that are equally consistent with the known facts.”

In other words, “when the facts support several possible conclusions, only some of which establish that the defendant’s negligence caused the plaintiff’s injury, the expert must explain to the factfinder why those conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion.”

Experience matters

As a Houston, Texas medical malpractice attorney, I have carefully studied these important Texas Supreme Court opinions. Devoting my law practice to medical malpractice cases, I work carefully to make sure that the medical testimony we present on behalf of our clients meets these legal standards.

If you or someone you love has been seriously injured by medical or hospital malpractice, our experienced medical negligence attorneys can help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case.


Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.