Methodist Healthcare System of San Antonio, Ltd., L.L.P. d/b/a Methodist Specialty and Transplant Hospital v. Louis Rangel--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00500-CV

METHODIST HEALTH CARE SYSTEM OF SAN ANTONIO, LTD.

d/b/a Methodist Specialty and Transplant Hospital,

Appellant

v.

Louis RANGEL,

Appellee

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-16402

Honorable Martha Tanner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 14, 2005

REVERSED AND REMANDED

Methodist Health Care System of San Antonio, Ltd. d/b/a Methodist Specialty and Transplant Hospital appeals the trial court s order denying Methodist s motion to reconsider its objection to the expert report submitted by Louis Rangel in the underlying medical malpractice cause. Methodist contends that the trial court abused its discretion because the expert was not qualified and the report alleged a standard of care that was not in place at the time of Rangel s surgery. Because we hold that Rangel s expert failed to establish his qualifications in his report, we reverse the trial court s order and remand the cause to the trial court with instructions.

Background

Rangel was diagnosed by Samuel Vick, M.D., a urologist, as needing surgical intervention for a hydrocele // on his right testicle. Rangel sued Vick and Methodist claiming that Vick performed the surgery on his left testicle. Rangel alleged that Methodist personnel failed to follow proper pre-operative procedures to ensure that the operation was performed on the correct side and site of his body.

After Rangel served Methodist with the expert report of Dr. Ted Wesley Switzer, Methodist moved to dismiss the case asserting that the report failed to comply with the statutory requirements for an expert report in a health care liability case. The trial court ordered Rangel to file an amended report. Rangel amended his petition to add a reference to the doctrine of res ipsa loquitur and filed an amended report. Methodist filed a motion to reconsider its objections to the report and a supplemental motion to dismiss. Methodist appeals the trial court s order denying its motion.

Qualifications

Under section 74.351, a claimant must, not later than the 120th day after the date a health care liability claim is filed, serve on each party one or more expert reports addressing liability and causation. Tex. Civ. Prac. & Rem. Code Ann. 74.351(a), (j) (Vernon 2005). In order to qualify as an expert witness in a suit against a health care provider, the physician preparing the report must be qualified on the basis of training or experience to offer an expert opinion regarding the accepted standard of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim. Tex. Civ. Prac. & Rem. Code Ann. 74.402(b) (Vernon 2005). In determining whether a witness is qualified on the basis of training or experience, the trial court must consider whether, at the time the claim arose or at the time the testimony is given, the witness:

(1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and

(2) is actively practicing medicine in rendering medical care services relevant to the claim.

Tex. Civ. Prac. & Rem. Code Ann. 74.402(c) (Vernon 2005). In order to qualify as an expert witness on the issue of causation, the physician must be qualified to render opinions on that causal relationship under the Texas Rules of Evidence. Tex. Civ. Prac. & Rem. Code Ann. 74.403(a) (Vernon 2005). Rule 702 of the Texas Rules of Evidence requires that an expert be qualified by knowledge, skill, experience, training, or education and that the testimony assist the trier of fact. Tex. R. Evid. 702.

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). The proponent of an expert report has the burden to show that the expert is qualified. Broders, 924 S.W.2d at 153-54; Olveda v. Sepulveda, 141 S.W.3d 679, 682 (Tex. App. San Antonio 2004, no pet.).

The qualifications of an expert must appear in the report itself. Olveda, 141 S.W.3d at 683. [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. Broders, 924 S.W.2d at 152. Such a rule would ignore the modern realities of medical specialization. Id. A medical witness who is not of the same school of practice may be qualified to testify if he or she has practical knowledge of what is usually and customarily done by other practitioners under circumstances similar to those that confronted the defendant charged with malpractice. Olveda, 141 S.W.3d at 682 (quoting Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App. Houston [14th Dist.] 1999, no pet.)). And when a party can show that a subject is substantially developed in more than one field, testimony can come from a qualified expert in any of those fields. Broders, 924 S.W.2d at 154.

Rangel contends that Dr. Switzer is qualified based on his service on a peer review committee. Rangel also contends that Dr. Switzer is qualified to testify regarding the departure from the standard of care applicable to nurses because physicians should be qualified to testify about the communication necessary between physicians and nurses. Rangel further contends that Dr. Switzer is qualified based on his service as a director of various departments. Finally, Rangel emphasizes that because his cause includes a claim based on the doctrine of res ipsa loquitur, any medical doctor would be qualified to testify that the performance of an operation on the wrong part of his body was a departure from the standard of care.

Dr. Switzer has practiced as an emergency room physician since 1984, when he completed a three year internship/residency in surgery. Dr. Switzer s report states that he has experience in clinical practice, quality management and peer review in the hospital setting. Dr. Switzer states that as a member and past chair of a peer review committee at the hospital where he is employed, he has reviewed ten to twenty cases per month with regard to quality and standards of care provided to patients in both inpatient and outpatient settings. Rangel also notes that Dr. Switzer s curriculum vitae reflects that he has been a director of various departments including but not limited to the Associate Medical Director for CQI and Risk Management from 1991 through 2000 for TEXEM Emergency Physicians, PA in San Antonio, Texas, and Medical Director and Chairman for the Department of Emergency Medicine at Santa Rosa Northwest Hospital in San Antonio, Texas from 1990 through 1995.

With regard to Rangel s general negligence claim, Rangel has failed to establish that Dr. Switzer is qualified to testify regarding the standard of care applicable to the condition involved in the underlying claim. With regard to Dr. Switzer s peer review committee and director positions, the only detail provided is that he has reviewed ten to twenty cases per month involving patients in both inpatient and outpatient settings. This does not provide sufficient detail from which either the trial court or this court can determine that Dr. Switzer s experience on the committee and as a director is relevant to the standard of care applicable to hospital personnel in a surgical setting. See Tomasi v. Liao, 63 S.W.3d 62, 66 (Tex. App. San Antonio 2001, no pet.) (noting service on peer review committee not sufficiently detailed to make experience relevant). Similarly, Dr. Switzer s general reference to a three year internship/residency in surgery is not sufficient to establish that he had sufficient training and experience with regard to the procedures hospital personnel were required to follow during a surgical procedure eight years after Dr. Switzer s internship/residency ended. Dr. Switzer s statement that he has experience in clinical practice, quality management and peer review in the hospital setting is conclusory and does not provide any detail from which a court could determine the nature of his qualifications. Finally, Rangel has failed to show that the pre-operative procedures hospital personnel are required to follow in a surgical setting are substantially developed in Dr. Switzer s field of emergency room medicine. A general familiarity with the nature of the communication flow between nurses and physicians is not sufficient.

With regard to Rangel s reliance on the doctrine of res ipsa loquitur, Methodist specifically challenges whether the doctrine applies. Rangel contends that the surgical procedure that was undertaken resulted in an operation being performed on his left testicle rather than his right testicle. Acknowledging the limited applicability of the doctrine of res ipsa loquitur in medical malpractice cases, the Texas Supreme Court noted the following specific examples of when the doctrine would apply, including negligence in the use of mechanical instruments, operating on the wrong portion of the body, or leaving surgical instruments or sponges within the body. Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990). Rangel appears to be contending that since he alleged that the operation was performed on the wrong testicle res ipsa loquitur automatically applies. We disagree with this contention.

The general rule is that res ipsa loquitur applies in medical malpractice cases only when the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony. Id. In Haddock, although the court referred to negligence in the use of mechanical instruments as an example of when res ipsa loquitur would apply, the court further noted one may not automatically rely upon res ipsa loquitur in every medical malpractice case which involved the use of a mechanical instrument. Id. The court cautioned, Res ipsa loquitur may not be applied in those circumstances when the use of the mechanical instrument is not a matter within the common knowledge of laymen.

Similarly, although leaving surgical instruments or sponges within the body is another example provided in Haddock, the Texarkana court noted that res ispa loquitur cannot be applied in every case in which an object is left in a patient s body. Traut v. Beaty, 75 S.W.3d 661, 667 (Tex. App. Texarkana 2002, no pet.). The court reasoned, Such a conclusion follows logically from the rule that res ipsa loquitur is inapplicable in medical malpractice cases, except when the nature of the alleged malpractice and injuries are plainly within the common knowledge of lay people [sic]. To conclude res ispa loquitur applies any time an object is left inside a patient would make the exception the rule. Id. In Traut, a physician left a part of a wire in the patient s breast after performing a hook-wire needle localization procedure on her. 75 S.W.3d at 663. The court rejected the applicability of res ipsa loquitur, noting that the physician s deposition testimony demonstrated that the risk to Traut s overall care from removing the wire may have justified the decision to leave the wire in. Determining such a question is not plainly within the common knowledge of lay people [sic].

In this case, counsel argued the following during the hearing before the trial court:

As you recall, this case involved the right hydrocele repair. Surgery was a midline incision on the scrotal sac. That s the site. There is no dispute in this case as to where the surgery was performed. It was a midline incision on the scrotal sac.

Counsel later argued:

There isn t a lay person [sic] on a jury that can sit down and say without any expert testimony say that the wrong part of the body was operated on. You have to have interpretation from a radiologist, from a surgeon to talk about the procedure and how you can differentiate between which side was operated on and what wasn t.

There is no indication in a second operative report a year later when they removed the left testicle that there was anything done to the left testicle pre-operatively before. It doesn t mention, Well, there is an old operative site here or there is some damage done to the left vas deferens or the epididymis because he put a needle in there. Doesn t say that in the report. There is no mention of it at all.

One court has noted that the relevant inquiry is whether the proper performance of the medical procedures is commonly known or within the common knowledge of a layperson. Shelton v. Sargent, 144 S.W.3d 113, 120-21 (Tex. App. Fort Worth 2004, pet. denied). In Shelton, the plaintiff sued various health care professionals and entities for injuries arising from the delayed diagnosis of breast cancer. Id. at 117-18. The court rejected the plaintiff s reliance on the doctrine of res ipsa loquitur, asserting, Medical decisions about performing and interpreting mammograms, sonograms, biopsies, and other diagnostic procedures require professional training and are not common knowledge. Similarly, the content of hospital policies and their underlying purposes and rationale are not commonly known by the average layperson. Id. at 121.

Although expert testimony may not always be needed when a plaintiff alleges an operation was performed on the wrong portion of the body, the operation in this case does require expert testimony because the nature of the medical procedure and whether it resulted in the wrong part of the body being operated on are not within the common knowledge of a layperson. Even were this court to accept the allegation that the operation in question was performed on the wrong testicle, the policies and procedures hospital personnel are required to follow to ensure that a surgeon performs an operation on the correct side of the body are not commonly known or within the common knowledge of a layperson. Therefore, even if the doctrine were to apply in an action against the surgeon who performed the operation, we question its applicability in an action against the hospital personnel.

Finally, even under the doctrine of res ipsa loquitur, Rangel was required to establish that Dr. Switzer was qualified to testify regarding causation. Vick v. Rangel, No. 04-05-00362-CV, 2005 WL 2438375, at *1 (Tex. App. San Antonio Oct. 5, 2005, no pet. h.); Hector v. Christus Health Gulf Coast, No. 14-04-00625-CV, 2005 WL 1981303, at *4-5 (Tex. App. Houston [14th Dist.] Aug. 18, 2005, no pet. h.); Ruiz v. Walgreen Co., 79 S.W.3d 235, 239-40 (Tex. App. Houston [14th Dist.] 2002, no pet.). Nothing in the report or Dr. Switzer s curriculum vitae establishes that Dr. Switzer has the experience or training to testify that if a surgical procedure is erroneously performed on a left testicle as opposed to a right testicle it would proximately cause subsequent post-operative complications, bleeding, hematoma formation, massive scrotal swelling, pain and difficulty urinating, and [ultimately necessitate] a second reparative operation which included the loss of Mr. Rangel s left testicle which was otherwise preventable.

Conclusion

The trial court s order is reversed, and the cause is remanded to the trial court with instructions to the trial court to award Methodist its reasonable attorney s fees and costs of court and to render judgment dismissing Rangel s claims against Methodist with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(b) (Vernon 2005) (setting forth contents of order to be entered by trial court if expert report is untimely).

Alma L. L pez, Chief Justice