The Texas Court of Appeals recently affirmed a trial court decision that excluded an expert’s “standard of care” testimony in a medical malpractice case. In what has become a disturbing trend, the expert was not allowed to testify despite his eminent qualifications and obvious knowledge. A jury will therefore never decide whether a patient who may have been injured by negligent care is entitled to compensation.

Wigley’s Lawsuit

After being seriously injured in a car accident, Stanley Wigley was taken to Shannon West Texas Memorial Hospital. His life was saved by surgeons, but spinal injuries in the accident rendered him a quadriplegic. Wigley was transferred to the Intensive Care Unit (ICU), where he was placed on a ventilator. He could not eat or move for an extended time.

Wigley’s primary physician was Dr. Emmette Flynn. During his time in the hospital, Wigley developed pressure ulcers, commonly known as bedsores. After his release, Wigley sued the hospital and Dr. Flynn, alleging that the ICU nurses and Dr. Flynn negligently failed to prevent the pressure ulcers from developing.

Wigley designated Dr. Lige Rushing, Jr. as his expert witness. After reviewing Dr. Rushing’s report and taking his deposition, the defense moved to exclude Dr. Rushing as an expert witness. The defense also filed for summary judgment, contending that without Dr. Rushing’s testimony, there was no evidence of negligence. The trial court agreed and dismissed the case.

Medical Malpractice Expert Standard in Texas

As have many other states, the Texas legislature has narrowed the range of experts who can provide admissible testimony about the standard of care that physicians and hospitals should provide. Under Texas law, an expert in a medical malpractice case cannot express an admissible opinion about whether a healthcare provided departed from the accepted standard of medical care unless:

• the expert was practicing medicine when the claim arose or when the expert testifies;
• the expert’s field of practice during either of those times involved the “same kind of care or treatment” delivered by the defendant;
• the expert has knowledge of the accepted standard of care; and
• the expert is qualified by training or experience to render an opinion.

The last two standards are traditional, uncontroversial, and adequate safeguards to assure that expert witnesses really are experts. The question here was whether Dr. Rushing satisfied the first two standards.

Dr. Rushing’s Qualifications

Dr. Rushing was board certified in the practice of internal medicine, rheumatology, and geriatrics. Under traditional principles governing the admissibility of expert witnesses, that training and experience would be sufficient to permit an expert to testify about how bedsores should be prevented, particularly if the expert had experience treating patients who are at risk of developing pressure ulcers.

Dr. Rushing’s report indicated that he had provided primary care to ten thousand hospital, nursing home, and assisted-living facility patients. His report indicated that he had treated patients in substantially the same condition as Wigley who were at high risk for the development of pressure ulcers. Under traditional principles governing the admissibility of expert witnesses, that background would certainly qualify Dr. Rushing to give expert testimony about the standard of care that should be followed to prevent the formation of pressure ulcers.

Dr. Rushing opined that an appropriate standard of care should assure that a patient does not develop pressure ulcers unless they are unavoidable, and should require immediate treatment of unavoidable pressure ulcers. Dr. Rushing concluded that Wigley’s condition did not make pressure ulcers unavoidable. He opined that the defendants breached the appropriate standard of care by failing to prevent his pressure ulcers, by failing to have an effective pressure ulcer prevention program, and by failing to keep appropriate documentation.

Appellate Court Ruling

The appellate court noted that Dr. Rushing is “generally familiar with pressure ulcers,” which appears to be a vast understatement. However, the court found no evidence that Dr. Rushing was “familiar with the prevention or treatment of pressure ulcers in a treatment or ICU context.” The court also noted that Dr. Rushing testified that he does not “hold himself out as an expert in critical care.”

The appellate court ruled that the trial court “was not required to infer from Dr. Rushing’s general familiarity with pressure ulcers in other contexts that he is qualified to address pressure ulcers that develop in a trauma and ICU context.” But pressure ulcers develop because a patient isn’t moved. The court used “context” to mean “location of the patient’s bed within a hospital,” but whether the patient is in an ICU bed or any other hospital bed would not change the reason pressure ulcers develop.

The court suggested no reason for believing that the means of preventing a pressure ulcer in an ICU differs from the means of preventing a pressure ulcer in any other hospital or nursing home setting. The court’s reasoning seems to be based on a distinction without a difference.

Nor did the court identify any way in which Dr. Rushing failed to satisfy the Texas statutes that determine the admissibility of expert opinions rendered in medical malpractice cases. Dr. Rushing was practicing medicine, he had knowledge of the standard of care for assuring that bedridden patients do not develop pressure ulcers, and he was qualified by training and experience to render an opinion.

The court may have concluded (but did not expressly hold) that Dr. Rushing’s practice did not involve the “same kind of care or treatment” delivered by the defendants. However, the relevant care was the treatment of bedridden patients to prevent bedsores, and Dr. Rushing clearly rendered that kind of care to his patients. The fact that he did not do so in an ICU has no obvious relevance to the “kind of care or treatment” he rendered.

Disturbing Trend

This case follows a disturbing trend that prevents juries from deciding whether a health care provider should be held responsible for injuries that patients clearly suffered. ExpertPages recently discussed a similar Arizona case that decided a registered nurse who was certified in wound care and who worked as a wound care coordinator was not qualified under Arizona law to testify about the standard of wound care that ICU nurses should have provided to a patient with a pressure wound.

The Arizona court prevented a jury from considering a claim in which negligence seemed obvious, but the decision was arguably based on Arizona statutes. In Wigley’s case, the expert appears to have satisfied all statutory criteria for admissibility.

The trend that holds medical malpractice plaintiffs to impossible standards when they search for expert witnesses is unfortunate. Excluding helpful testimony from qualified witnesses weakens the jury system by preventing juries from deciding whether patients have been injured by allegedly negligent healthcare providers. That harms the civil justice system as well as injured patients.