MEMORIAL HERMANN HEALTHCARE SYSTEM v. Burrell

230 S.W.3d 755, 2007 Tex. App. LEXIS 5015, 2007 WL 1855712
CourtCourt of Appeals of Texas
DecidedJune 28, 2007
Docket14-05-01028-CV
StatusPublished
Cited by126 cases

This text of 230 S.W.3d 755 (MEMORIAL HERMANN HEALTHCARE SYSTEM v. Burrell) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MEMORIAL HERMANN HEALTHCARE SYSTEM v. Burrell, 230 S.W.3d 755, 2007 Tex. App. LEXIS 5015, 2007 WL 1855712 (Tex. Ct. App. 2007).

Opinion

OPINION

JOHN S. ANDERSON, Justice.

This is an interlocutory appeal in a health care liability case. Appellee Vincent Burrell, as next friend of Katie Whitefield, sued appellants, Memorial Hermann Healthcare System and Dr. Dominic Gregory Sreshta, for medical malpractice. In two issues, appellants challenge the trial court’s denial of their objection to appel-lee’s expert witness report and motion to dismiss under section 74.351 of the Texas Civil Practices and Remedies Code. We affirm.

Factual and Procedural Background

On November 19, 2002, Katie Whitfield, an obese woman suffering from Alzheimer’s, was brought to the Memorial Her-mann Southwest Hospital emergency room and admitted to the hospital. While in the hospital, she was treated by Dr. Dominic Sreshta. Whitfield was discharged from the hospital on November 25. Whitfield alleges she developed decubitus ulcers (bedsores) in her sacral area because of substandard care received at the hospital.

After filing suit, appellee filed an expert report by Dr. Thomas Winters pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code. Appellants filed a motion to dismiss for failure to comply with section 74.351. The trial court denied appellants’ motion and found Dr. Winters qualified to provide an expert report in this case. In its order, the trial court ruled, alternatively, “that [appellee] has made an objective good faith effort to comply with the definition of an expert report as required by relevant statute such that this Court would grant an extension for [appel-lee] to comply with the statute if it found or if a reviewing Court were to find that Dr. Winters’ report does not comply with the statute.” Appellants filed this interlocutory appeal pursuant to section 51.014(a)(9) of the Texas Civil Practice and Remedies Code.

Discussion

I. Issues Presented

Appellants present two issues on appeal: (1) whether appellee’s expert is qualified to file an expert report under section 74.351 of the Texas Civil Practices and Remedies Code; and (2) if not, whether appellee is entitled to an extension of time to cure the expert report.

II. Standard of Review

We review a trial court’s determination that an expert is qualified under an abuse of discretion standard. Broders v. Heise, 924 S.W.2d 148, 151-52 (Tex.1996); Group v. Vicento, 164 S.W.3d 724, 727 (Tex.App.—Houston [14th Dist.] 2005, pet. filed). Appellee, as the proponent of the expert, has the burden to show that the expert is qualified and the expert report satisfies the statutory requirements. See Olveda v. Sepulveda, 141 S.W.3d 679, 682-83 (Tex.App.—San Antonio 2004, pet. denied). The trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004). We may not reverse a trial court’s discretionary ruling simply because we might have decided it differently. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003) (construing former statute).

III. Is Dr. Winters Qualified As An Expert?

In appellants’ first issue, they contend appellee failed to comply with section *758 74.351 of the Texas Civil Practice and Remedies Code because (1) Dr. Winters is not qualified as an expert under section 74.402, and (2) Dr. Winters is not qualified to testify about causation under Rule 702 of the Texas Rules of Evidence.

A. What evidence may this court consider when determining if a party complied with Section 74.351?

Before addressing the merits of appellants’ argument that Dr. Winters is not qualified as an expert, we must determine what evidence we may consider in our analysis. In support of their argument, appellants refer us to excerpts from Dr. Winters’ depositions in other cases, the affidavit of Dr. Vartian, and standards promulgated by the Infectious Diseases Society of America. However, our analysis of the qualifications of an expert under section 74.351 is limited to the four corners of the expert’s report and curriculum vitae. See Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001) (holding issue of compliance of an expert report with the substantive requirements of former article 4590i is determined on the basis of information contained within the four corners of the report); Randalls Food & Drugs, L.P. v. Kocurek, No. 14-05-01184-CV, 2006 WL 2771872, at *2-3 (Tex.App.—Houston [14th Dist.] Sept. 28, 2006, no pet.) (mem op.) (applying four corners rule in determining the qualifications of an expert under section 74.351); Fontenot Enter., Inc. v. Kronick, No. 14-05-01256-CV, 2006 WL 2827415, at *4 (Tex.App.—Houston [14th Dist.] Oct. 5, 2006, no pet.) (mem op.) (applying four corners rule in determining the qualifications of an expert under section 74.351). Therefore, we consider only Dr. Winters’ report and curriculum vitae to determine whether he is qualified as an expert under section 74.351. (We have attached a complete copy of Dr. Winters’ expert report as an appendix to this opinion.)

B. Section 74.402

Appellants contend Dr. Winters is not qualified as an expert under the requirements set forth in section 74.402 of the Texas Civil Practice and Remedies Code. An expert providing opinion testimony regarding whether a health care provider departed from the accepted standards of health care must satisfy the requirements set forth in section 74.402. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(B) (Vernon Supp.2005). Section 74.402 provides:

(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.

Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b) (Vernon 2005).

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Bluebook (online)
230 S.W.3d 755, 2007 Tex. App. LEXIS 5015, 2007 WL 1855712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/memorial-hermann-healthcare-system-v-burrell-texapp-2007.