Marie Eisner, Individually and as Representative of the Estate of Garnett Eisner, Deceased v. H. Leonard Bentch, M.D.--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION

No. 04-04-00387-CV

Marie EISNER, Individually and

as Next Friend of Garnett Eisner, Deceased,

Appellant

v.

H. Leonard BENTCH, M.D.,

Appellee

From the 216th Judicial District Court, Gillespie County, Texas

Trial Court No. 9592

Honorable Stephen B. Ables, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 10, 2005

AFFIRMED

Appellant Marie Eisner appeals from the trial court s dismissal of her medical malpractice action against Appellee Dr. H. Leonard Bentch. Finding no error, we affirm the judgment of the trial court.

Background

The underlying medical malpractice action arose from the care and treatment rendered by Appellee Dr. Bentch, a gastroenterologist, to Garnett Eisner, Appellant Marie Eisner s late husband. At the time Garnett Eisner was treated by Dr. Bentch, Eisner was seventy-seven years of age and had cardiac problems. Garnett Eisner had an artificial valve in his heart and took Coumadin, an anticoagulant, to prevent clots from forming around the artificial valve. In accordance with the guidelines from the American College of Gastroenterology ( ACGE ) and in preparation for a colonoscopy, Dr. Bentch instructed Garnett Eisner to stop taking Coumadin.

On February 22, 2001, Dr. Bentch performed a colonoscopy with polypectomy on Garnett Eisner. During the procedure, Garnett Eisner experienced a cardiac arrhythmia, or atrial flutter. However, Garnett Eisner tolerated the procedure well and was sent home. Dr. Bentch instructed him to begin taking Coumadin five days after the surgery. On February 25, 2001, Garnett Eisner suffered a stroke which eventually led to his death.

Garnett Eisner s wife, Marie Eisner, sued Dr. Bentch for medical malpractice, alleging that her husband had been negligently classified as a low-risk patient when he was actually a high-risk one. According to Marie Eisner, when her husband had an atrial flutter during the procedure, Dr. Bentch should have reclassified Garnett Eisner as a high-risk patient and ordered that he take Heparin, an anticoagulant. Marie Eisner retained two experts: Dr. Sutton, a gastroenterologist, and Dr. Schapira, a cardiologist. During his deposition, Dr. Sutton testified that he was not aware of any literature to support the theory that a patient should be reclassified when he had an atrial flutter during a procedure. And, Dr. Sutton testified that he had not performed a polypectomy when a patient had had an atrial flutter. Dr. Schapira, a cardiologist, testified during his deposition that he had never performed a colonoscopy or polypectomy, and he did not know of any literature to support Eisner s theory.

Dr. Bentch filed a motion to exclude and/or limit expert testimony of the two doctors. At a hearing on the Friday before trial was to begin, the trial court heard and granted Dr. Bentch s motion to exclude. Both parties then noted that as a result of the motion being granted, Eisner would not have sufficient evidence to prove her case at trial. Neither party wished to expend money or waste judicial resources when Eisner could clearly not prove her case without the testimony of her expert witnesses. Thus, on agreement by both parties, Eisner was allowed to present an oral motion for continuance, and Dr. Bentch was allowed to present an oral motion to dismiss. // The trial court denied Eisner s motion for continuance and granted Dr. Bentch s motion to dismiss. On appeal, Eisner is no longer represented by counsel and has filed a pro se brief.

Discussion

In her pro se brief, Marie Eisner argues that the trial court erroneously denied her a right to trial by jury. However, after Dr. Bentch s motion to exclude Eisner s experts was granted, Eisner s attorney, recognizing the futility of proceeding to trial without any expert testimony, agreed to allow Dr. Bentch to present an oral motion to dismiss so long as he was also allowed to present an oral motion for continuance and to preserve any error with regard to the motion to exclude. Because both parties agreed to allow the trial court to proceed on the two oral motions, we find no error on the part of the trial court. We overrule Eisner s first issue.

In her second issue, Eisner argues that the trial court should not have granted Dr. Bentch s motion to exclude the testimony of her two experts. We may not disturb the trial court s exclusion of expert testimony absent an abuse of discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Martinez v. City of San Antonio, 40 S.W.3d 587, 592 (Tex. App. San Antonio 2001, pet. denied). The test for abuse of discretion is whether the trial court acted arbitrarily, unreasonably, or without reference to any guiding rules or principles. Robinson, 923 S.W.2d at 558; Martinez, 40 S.W.3d at 592. We cannot find an abuse of discretion simply because we would have ruled differently in the same circumstances or if the trial court committed a mere error in judgment. Robinson, 923 S.W.2d at 558; Martinez, 40 S.W.3d at 592.

Generally, in a medical malpractice cause of action, the plaintiff must prove by competent expert testimony the applicable standard of care. Battaglia v. Alexander, No., 02-0701, 2005 WL 1252326, at *4 & n.7 (Tex. May 27, 2005). Admissibility of expert testimony is governed by the Texas Rules of Evidence and the Robinson factors. See Tex. R. Evid. 702, 705(c); Robinson, 923 S.W.2d at 556; Martinez, 40 S.W.3d at 592. Texas Rule of Evidence 702 defines when a witness is qualified to be an expert: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702 (emphasis added).

In his motion to exclude, Dr. Bentch argued that Eisner failed to show that Dr. J. Schapira was qualified to testify about the standard of care for a gastroenterologist. We agree. The supreme court has noted that a doctor is not qualified to testify about every medical issue merely because he is a doctor:

[G]iven the increasingly specialized and technical nature of medicine, there is no validity, if there ever was, to the notion that every licensed medical doctor should be automatically qualified to testify as an expert on every medical question. Such a rule would ignore the modern realities of medical specialization. The [plaintiffs ] proposed rule would also eliminate the trial court s role of ensuring that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion. After all, the proponent of the testimony has the burden to show that the expert possesses special knowledge as to the very matter on which he proposes to give an opinion. . . . Our holding does not mean that only a neurosurgeon can testify about the cause in fact of death from an injury to the brain, or even that an emergency room physician could never so testify. What is required is that the offering party establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject.

Broders v. Heise, 924 S.W.2d 148, 152-53 (Tex. 1996) (citations omitted).

Here, there is nothing in the record to indicate that Eisner met her burden of showing that Dr. Schapira had the knowledge, skill, experience, training, or education regarding the applicable standard of care in this case. Dr. Schapira is a cardiologist, not a gastroenterologist. During his deposition, he testified that he does not perform colonoscopies or polypectomies, the types of procedures involved in this case. According to Dr. Schapira, he is not an expert in the field of gastroenterology and has never held himself out as an expert in the area of gastroenterology. There is nothing in the record to indicate that Dr. Schapira was qualified to testify about the standard of care in this case.

Because the trial court correctly concluded that Dr. Schapira was not qualified to testify about the standard of care, to prove her case, Eisner had to rely on Dr. Fred Sutton, her other expert, to testify about the applicable standard of care. While Dr. Sutton, a gastroenterologist who has performed hundreds of colonscopy procedures, was clearly qualified to testify about the standard of care, his assertion in this case about what the applicable standard of care should be was not shown to be reliable.

In addition to demonstrating an expert witness is qualified to testify, the proponent must also demonstrate that the expert s testimony is both relevant to the issues and based on a reliable foundation. Robinson, 923 S.W.2d at 556; Martinez, 40 S.W.3d at 592. In making the threshold determination of admissibility under rule 702, the trial court considers the following non-exclusive list of factors:

1. the extent to which the theory has been or can be tested;

2. the extent to which the technique relies upon the subjective interpretation of the expert;

3. whether the theory has been subjected to peer review and/or publication;

4. the technique s potential rate of error;

5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

6. the non-judicial uses which have been made of the theory or technique.

Robinson, 923 S.W.2d at 557.

At the time of the hearing on the motion to exclude, Eisner had a single liability theory, to which Dr. Sutton was to testify: whether the occurrence of atrial flutter, a cardiac arrhythmia, during Mr. Eisner s gastric procedure should have caused Dr. Bentch to change Mr. Eisner s classification from low risk to high risk, which would have required Dr. Bentch to use the blood thinning medication Heparin during and immediately after the procedure.

In his deposition, Dr. Sutton testified that he has never had a patient experience an atrial flutter, an atrial fibrillation, or any kind of heart dysrhthmia during a procedure like the one here:

Q: Have you ever had an occasion during a procedure like that where a patient has experienced atrial flutter?

A: No.

Q: How about atrial fibrillation or any kind of heart dysrhythmia?

A: Not that I am aware of.

Q: Okay. But it is your testimony today if in fact you had a patient with a pre-existing list of factors that Mr. Eisner had prior to the start of the polypectomny that Dr. Bentch performed, that with the two episodes of atrial flutter that he had during the polypectomy your practice would have been or your option at that point would have been to immediately give Heparin and continue that up until the time he was anticoagulated with Coumadin, correct?

A: Yes.

Q: Are you familiar, or can you point me to any literature at all that supports your contention that that is the appropriate or that is the standard of care to follow in this situation with a patient such as Mr. Eisner?

A: When you look at guidelines, you won t be able to find that anywhere, specifically when you look at the guidelines from the ACGE. There are general guidelines, and they do not address the conditions that were present with Mr. Eisner, so one has to individualize, in general guidelines don t apply with some patients.

Q: Can you point me to any literature, published literature, either that is peer reviewed or that is in a guideline or any journal, can you point me to anything that says that if a patient with these kinds of risk factors who is still low risk prior to the procedure, should have Heparin given to him following the procedure if [he] ha[s] atrial flutter?

A: I don t think one would be able to find any literature that would support that. The closest one would find to support that would be in some of the and I believe it may be in the ACGE guidelines that would make a comment that for some patients one would have to individualize, but to specifically say that one with atrial flutter needs to be Heparinized, I don t think one would find it.

. . .

Q: You certainly are not aware of any such literature that exists, true?

A: True.

Q: Are you familiar with any studies or the results of any studies that have been conducted into whether atrial flutter during a procedure like this in a patient that starts off as low risk, that changes [his] risk status at all? Are you familiar with any studies that have been done in that area?

A: No.

Dr. Sutton could not point to any scientific studies or published medical literature to support his opinion that the standard of care required Mr. Eisner to be reclassified as a high-risk patient and given Heparin. And, Dr. Sutton admitted that he had no personal experience with a situation like the one that confronted Dr. Bentch in this case. He had never had a patient who had had an atrial flutter or any type of arrhythmia during a procedure. We find no abuse of discretion by the trial court and overrule Eisner s second issue.

Conclusion

Having overruled both issues, we affirm the judgment of the trial court.

Karen Angelini, Justice