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In a medical-malpractice case, shouldn’t the plaintiff’s medical expert critiquing the defendant’s work practice the same type of medicine?

August 24
2018

By Tarush R. Anand – Shareholder, Houston, TX

In a medical-malpractice case, shouldn’t the plaintiff’s medical expert critiquing the defendant’s work practice the same type of medicine? Not necessarily, says a Texas appellate court.

Texas law requires a plaintiff bringing a medical-malpractice case to provide a medical expert report at the start of the case. The idea behind this is to make the plaintiff demonstrate that the claim has some merit by having a qualified expert say that the defendant (doctor, hospital, etc.) failed to meet the applicable standard of care. In light of this, it would make sense to require the expert claiming a violation of the applicable standard of care to be in the same field of medicine. However, the 14th Court of Appeals of Texas in Houston ruled otherwise.

The defendant in that case was an emergency-medicine doctor. The allegation was that the defendant did not properly instruct the plaintiff on how to use crutches, and the plaintiff then fell. The plaintiff offered an expert report from an orthopedic surgeon. The defendant objected to the report, arguing that an orthopedic surgeon is not qualified to opine on the standard of care applicable an emergency-medicine doctor. The court rejected the argument, let the report stand, and allowed the case to proceed.

The case is Pettway v. Olvera, No. 14-17-00532-CV, 2018 Tex. App. LEXIS 6697 (Tex. App.—Houston [14th Dist.] Aug. 23, 2018).

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