Tuesday, January 18, 2011
Friday, January 7, 2011
TMB Announces New Medical Director
The Texas Medical Board announced Thursday that Linda Gage-White, M.D., will become Medical Director of the agency in mid-January.
Gage-White, an ear, nose and throat specialist, served on the Louisiana State Board of Medical Examiners from 2002 to 2010 as president, vice-president and as a member of the Licensure Committee and the Board's Malpractice Committee.
"We're very pleased to have someone of this caliber join the agency," said TMB Executive Director Mari Robinson, J.D. "Dr. Gage-White's extensive, relevant experience and her passion for patient safety will help fulfill the Board's mission of public protection."
A native of Fort Lauderdale, Florida, Gage-White graduated from Duke University and received her medical degree from the University of Miami School of Medicine. Gage-White interned at Mount Sinai Medical Center in Miami and completed her residency in otolaryngology at the University of Iowa Hospital and Clinics.
She has been affiliated with Louisiana State University Health Sciences Center for 25 years; she founded and served as director for the institution's multidisciplinary cleft lip and palate clinic. She was in private practice for 10 years before accepting her most recent academic appointment in 2000. She is board-certified in otolaryngology and has taken part in charitable medical missions throughout the world.
Dr. Gage-White fills a position vacated by Alan T. Moore, M.D., TMB's previous medical director. State law requires that if the agency's executive director is a non-physician, a medical director be hired.
1st COA—Wilson v. Shanti, summary judgment after expert’s opinions excluded
Plaintiff Kimberly Wilson sued pain management physician Ishan Shanti, M.D. Ms. Wilson saw treatment for pain in her lower back and left leg. Dr. Shanti performed three sets of injections on Ms. Wilson. Each time, she received an injection on her right side and then would return a few days later for an injection on her left side. Ms. Wilson began to experience pain on her right side between the second and third set of injections. It intensified after the third set of injections.
Ms. Wilson designated Dr. Mark Barhorst as her expert. He wrote a report and testified that the third set of injections caused increased pain to Ms. Wilson's left side and introduced pain to her right side. During his deposition, he said that his opinion was largely based on Ms. Wilson telling him that the pain started after the third set of injections. He also claimed, without explanation, that his opinion would not be wrong if the pain started earlier. During her deposition, Ms. Wilson testified that the pain started after the second set of injections, contradicting her expert.
Dr. Shanti filed a motion to exclude Dr. Barhorst's opinion as unreliable because it was based on an erroneous misunderstanding of when the pain started. Dr. Barhorst prepared a supplemental report in which he stated that his original report and testimony were based on errors. He claimed that the revised facts did not change his opinions, but did not explain why. The trial court granted the motion to exclude Dr. Barhorst. Dr. Shanti then moved for summary judgment, which was also granted. Ms. Wilson's motion for new trial was overruled by operation of law. Ms. Wilson then appealed these three decisions of the trial court.
The COA reiterated that if an expert bases his opinion upon unreliable foundational data, any opinion drawn from that data is unreliable and no evidence. Dr. Barhorst repeatedly emphasized that a basis for his opinions was the belief that Ms. Wilson's pain started after the third set of injections. In his supplemental report, he attempted to correct the error by stating that the third set of injections was "the most proximate cause" of her pain. He did not provide a basis for this conclusion or explain why his ultimate opinion was the same, even though the underlying facts had materially changed. The trial court did not err in excluding Dr. Barhorst's opinions.
Because the trial court properly excluded the testimony of Dr. Barhorst, Ms. Wilson did not have any expert testimony. In a medical malpractice action, breach of the standard of care must be established through expert testimony. On appeal, she claimed that the affidavit of her treating physician, which Dr. Shanti had relied on in his motion, raised a fact issue as to causation. Because she did not raise that issue in the trial court, the appellate court could not consider it.
Finally, the Court noted that Ms. Wilson failed to brief her final issue as to the motion for new trial. Any error on that ground was waived.
See the opinion at Wilson v. Shanti.
Wednesday, January 5, 2011
Monday, December 13, 2010
1st COA--Doctors Hospital v. Hernandez
In this case, Doctors Hospital and Nurse Price challenged the trial court's denial of their motion to dismiss and objections to Plaintiff's expert reports. This undeniably tragic case arose from the death of Cynthia Hernandez just eight hours after delivering her daughter. Plaintiffs filed the expert reports of Harold Miller, M.D., an ob-gyn, and Traci McManaman-Bridges, a registered nurse.
Defendants first claimed that Dr. Miller was not qualified to serve as an expert because his experience was all in teaching hospitals, such as Ben Taub Hospital and not in smaller, tertiary care hospitals. The COA rejected this claim, sating that the relevant inquiry must be guided by CPRC 74.402, which states:
(a) For purposes of this section, "practicing health care" includes:
(1)training health care providers in the same field as the defendant health care provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.
(b)In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.
The COA held that Dr. Miller was qualified as he was a board certified ob-gyn in practice since 1967 with extensive practical and teaching experience. Defendants also claimed that Dr. Miller was not qualified to opine as to the conduct of the nurses. The COA also rejected this argument. Dr. Miller stated that he had experienced working with nurses and was familiar with the standard of care for nurses.
In their second point of error, Defendants claimed that Dr. Miller's expert report was insufficient because it contradicted the medical records. The COA reiterated the rule that only the four corners of the expert report can be considered in a motion to dismiss. Finally, Defendants claimed that the report was conclusory as to causation. The COA held that the report sufficiently linked the conclusions to the facts of the case. The trial court's decision was affirmed.
See the opinion at Doctors Hospital v. Hernandez
Defendants first claimed that Dr. Miller was not qualified to serve as an expert because his experience was all in teaching hospitals, such as Ben Taub Hospital and not in smaller, tertiary care hospitals. The COA rejected this claim, sating that the relevant inquiry must be guided by CPRC 74.402, which states:
(a) For purposes of this section, "practicing health care" includes:
(1)training health care providers in the same field as the defendant health care provider at an accredited educational institution; or
(2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.
(b)In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:
(1) is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and
(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.
(c) In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and
(2) is actively practicing health care in rendering health care services relevant to the claim.
The COA held that Dr. Miller was qualified as he was a board certified ob-gyn in practice since 1967 with extensive practical and teaching experience. Defendants also claimed that Dr. Miller was not qualified to opine as to the conduct of the nurses. The COA also rejected this argument. Dr. Miller stated that he had experienced working with nurses and was familiar with the standard of care for nurses.
In their second point of error, Defendants claimed that Dr. Miller's expert report was insufficient because it contradicted the medical records. The COA reiterated the rule that only the four corners of the expert report can be considered in a motion to dismiss. Finally, Defendants claimed that the report was conclusory as to causation. The COA held that the report sufficiently linked the conclusions to the facts of the case. The trial court's decision was affirmed.
See the opinion at Doctors Hospital v. Hernandez
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