As a Houston, Texas medical malpractice attorney, I am very familiar with the many special requirements that medical malpractice plaintiffs must meet.
In the several years after the 2003 round of tort reform, many of the disputes surrounded the major preliminary requirements.
Pre-suit notice. At least 60 days before filing a lawsuit, medical negligence plaintiffs have to send all anticipated defendant physicians and healthcare providers a notice of claim letter. The letter must be accompanied by a thorough medical records release and authorization form that is specifically defined by statute.
Preliminary expert report. After filing the lawsuit, another mandate comes into play. When a defendant is served with citation and notice of the lawsuit, and then files an answer, a 120-day deadline starts ticking. Healthcare liability plaintiffs must serve a written expert report and curriculum vitae (resume) on each defendant, describing the applicable standard of care, how the defendant ran afoul of the standard of care, and how such conduct proximately caused injury, damages, or death.
In reality, plaintiffs may need multiple medical or nursing experts to meet this standard. If a plaintiff misses the deadline or the defendant believes that the report is insufficient under the law, then the defendant will file a motion to dismiss.
If the plaintiff missed the deadline by even a day, then no grace is allowed and the case must be dismissed. If the court finds the report was insufficient and it is not properly cured, then the case must be dismissed. In either instance, the court must award attorney’s fees to the defendant—meaning that the plaintiff would have to pay attorney’s fees to the doctor or healthcare provider who was just sued.
Now that we are around 15 years after the latest version of Texas medical malpractice tort reform, the law surrounding these initial requirements is largely settled. Most legal battles now focus on the adequacy of medical malpractice plaintiffs’ testifying experts at the time of trial.
Recent Texas Supreme Court case
After passing the preliminary hurdles, the role of medical experts working with medical negligence plaintiffs does not end. Plaintiffs’ attorneys keep their eye on an important date set by the trial court called the expert designation deadline. By that date, plaintiffs must have selected their final trial experts who will provide legally-required testimony on standard of care, breach, proximate causation, and damages.
When it comes to medical experts, Texas law has high standards that come into play.
Texas Civil Practice & Remedies Code Section 74.401 requires experts offering testimony on the standard of care and causation to have been practicing medicine either at the time that the alleged negligence occurred or at the time that the testimony if offered. Practicing medicine “includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.” “Physician” is defined as a person licensed to practice medicine in the United States.
While at first glance, the law may seem reasonable, upon further consideration you can see how it does not always make sense. For example, a trial judge could rule that an imminent medical school professor who performed thousands of a particular type of surgery, but recently retired, does not meet the legal definition for a medical expert. The trial judge could find that decades of directly-relevant experience are irrelevant.
The Texas Supreme Court released an opinion on May 25, 2018, that addresses this ongoing issue. The case is styled Jim P. Benge, M.D. and Kelsey-Seybold Medical Group PLLC v. Lauren Williams, Cause No. 14-1057, and was taken on appeal from Houston’s First Court of Appeals.
In the Benge case, the patient, Lauren Williams had a laparoscopic-assisted vaginal hysterectomy (“LAVH”) performed by Dr. Jim Benge, a gynecological surgeon who practiced at Kelsey-Seybold. He was assisted during the surgery by a resident in her third year of obstetrical/gynecological (OB/GYN) training after medical school, Lauren Giacobbe, M.D.
During the surgery, one of the two doctors accidentally punctured Ms. Williams’s bowel. No one noticed this fact for three days, despite some alarming post-operative complaints that developed over that time interval. The patient’s signs and symptoms included severe pain, abdominal tenderness, nausea, fever, anemia, tachycardia (rapid heart rate), constant pain, rectal bleeding, and low hemoglobin and hematocrit levels. Of course, during this time, the patient’s feces and bowel contents were spilling into her abdominal cavity.
At trial, the evidence showed that Ms. Williams developed sepsis, required a tracheotomy, was put on a mechanical ventilator, and remained in a chemically-induced coma for three weeks. After being discharged from the hospital, she needed health assistance and could not return to work. She had a complicated medical course, including multiple surgeries that left her with a permanent colostomy.
To meet the requirements of Texas law, the plaintiff designated a testifying expert witness, Bruce Patsner, M.D., a board certified OB/GYN physician. At trial, Dr. Patsner testified that a surgical cut most likely caused the bowel injury and that the discomfort after surgery should have raised suspicion of that injury. Dr. Patsner testified as to his opinion that the surgeon, Dr. Benge, did not properly supervise the resident, Dr. Giacobbe, and did not timely discover the complications.
One of the issues concerned by the Texas Supreme Court was Dr. Patsner’s qualifications to testify.
In addition to being board certified since 1986, Dr. Patsner was licensed to practice medicine in California, New Jersey, and New York. He graduated from Baylor College of Medicine and completed his residency at Harvard Medical School. He performed or first-assisted an estimated 450 LAVH procedures and more than 6,000 abdominal or vaginal hysterectomies.
Around 2003, Dr. Patsner was injured in a car wreck and could no longer practice as a gynecological surgeon and went to law school. In 2007, he began teaching law at the University of Houston and medicine at Baylor College of Medicine. He also taught medicine at Ben Taub Hospital and the Harris County Hospital, where he served as the Assistant Director of Gynecology Oncology Service. In 2011, Dr. Patsner moved to South Korea to teach both law and medicine at Yonsei University. Three days after testifying, Dr. Patsner was scheduled to go to Honduras to join physicians, including a medical oncologist with MD Anderson Cancer Center in Houston, to perform and teach the LAVH procedure.
The trial court rejected arguments by the attorneys for Dr. Benge and Kelsey-Seybold that Dr. Patsner was not qualified to testify as a medical expert. The defense lawyers argued that there was no evidence that Dr. Patsner was working at an accredited medical school in South Korea, that he was consulting with licensed physicians as defined by Texas law, or that he was training residents or medical students at an accredited medical school.
Houston’s First Court of Appeals and the Texas Supreme Court both decided that the trial court was within its discretion to allow Dr. Patsner’s testimony. The Supreme Court held that, absent contrary evidence, the trial court could fairly infer that Dr. Patsner’s teaching position in South Korea was with an accredited institution and that the physicians without whom he consulting on LAVH , including the MD Anderson oncologist, were licensed in the United States and providing patient care.
What kind of victory?
I am very surprised that both the First Court of Appeals and Texas Supreme Court both ruled this way. After all, in my view, Dr. Patsner was clearly qualified to testify about a surgery that he had performed hundreds of times during his career.
While this is certainly a victory for the plaintiff, there are a few more things we should consider.
First, think about how long it took to get to this point. Ms. Williams had her hysterectomy at Methodist Willowbrook Hospital on August 26, 2008. She filed her medical negligence lawsuit against Dr. Benge and Kelsey-Seybold, in the 164th District Court of Harris County, on August 23, 2010. It took almost a decade after her surgery, and eight years since filing her lawsuit to get to this point. Even though the Supreme Court found for the patient on this point, for other legal reasons the case was sent back to the trial court for another trial. This essentially means starting all over.
Second, the Texas Supreme Court’s ruling found that the trial court acted within its discretion when ruling that the plaintiffs’ expert was qualified under Texas law. Despite the court's recitation of precedent that the legal test for expert qualifications should not be too narrowly drawn, the current opinion does not mean that another trial judge who had made a different ruling would have been overturned. In my view, that is probably not the case at all.
To me, the lesson learned by this case validates my long-held belief as an experienced medical malpractice attorney: Plaintiffs and their attorneys should select and designate medical experts who unquestionably fall within the legal definitions of Texas law. This means licensed physicians in active medical practice in the United States during either the date the alleged negligent occurred or at the time of testimony.
To do otherwise subjects medical malpractice plaintiffs to the perils of a trial judge’s rulings and the potential for costly appeals and extensive delays.
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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. In 2017, H Texas magazine named him one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
