Opinion

Rodriguez v. Southern Health Partners Inc

Court
District Court, N.D. Texas
Filed
Aug 16, 2023
Cited by
0 cases
Authority
More cited than 31.9%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

IRENE RODRIGUEZ, individually §

and as parent and legal guardian of §

A.R. and B.R., et al., §

§

Plaintiffs, §

§

VS. § Civil Action No. 3:20-CV-0045-D

§

SOUTHERN HEALTH PARTNERS, §

INC., et al., §

§

Defendants. §

MEMORANDUM OPINION

AND ORDER

Plaintiff Irene Rodriguez (“Rodriguez”) brings this lawsuit on behalf of herself and

as parent and legal guardian of her surviving prematurely-born twin, A.R. Plaintiff Maria

Antonia Santos (“Santos”) brings this lawsuit as representative of the estate of B.R.,

Rodriguez’s other prematurely-born twin, who is now deceased. Rodriguez and Santos

(collectively, “plaintiffs”) allege that defendants Southern Health Partners, Inc. (“SHP”),

Grady Shaw, M.D. (“Dr. Shaw”), and Linda Hullett, R.N. (“Hullett”) failed to provide proper

prenatal care to Rodriguez while she was incarcerated as a pretrial detainee at the Navarro

County Jail (the “Jail”). Defendants move for summary judgment and to strike plaintiffs’

designated medical experts. For the reasons that follow, the court grants the motion for

summary judgment as to Rodriguez’s individual claims against Dr. Shaw and otherwise

denies the motion.

I

The court assumes the parties’ familiarity with its prior memorandum opinions and

orders in this case, which recount the background facts and procedural history.1

In a combined, interrelated motion, defendants seek summary judgment and to strike

plaintiffs’ designations of Robert James Carpenter, Jr., M.D. (“Dr. Carpenter”) and Donald

F. Meyn, Jr., M.D. (“Dr. Meyn”) as expert witnesses. Plaintiffs oppose the motion, which

the court is deciding on the briefs, without oral argument.

II

Defendants first contend that they are entitled to summary judgment on the ground

that plaintiffs’ claims against Dr. Shaw are time-barred.2

A

Defendants maintain that any claims against Dr. Shaw expired two years after he

examined Rodriguez, and, because Rodriguez admits that Dr. Shaw only examined her on

December 27, 2017, the applicable two-year statute of limitations ran on these claims on

1See Rodriguez v. S. Health Partners, Inc., 2020 WL 2928486, at *1-2 (N.D. Tex.

June 3, 2020) (Fitzwater, J.); Rodriguez v. S. Health Partners, Inc., 2020 WL 7056336, at *1-

2 (N.D. Tex. Dec. 2, 2020) (Fitzwater, J.).

2Defendants sometimes appear to maintain that this same limitations argument applies

as well to claims against Hullett. But defendants state several times in their motion that they

are only seeking summary judgment based on limitations as to the claims against Dr. Shaw.

In light of these repeated requests for relief that are confined to claims against Dr. Shaw, the

court will only address whether the claims against Dr. Shaw are time-barred. This

interpretation of defendants’ motion is in fact consistent with the rule that “[i]t is error to

grant summary judgment on a ground not raised.” State Farm Fire & Cas. v. Whirlpool

Corp., 2012 WL 2422922, at *2 (N.D. Tex. June 27, 2012) (Fitzwater, C.J.).

- 2 -

December 27, 2019. Defendants posit that this lawsuit, filed on January 8, 2020, is too late

with respect to the claims against Dr. Shaw.

Plaintiffs rely on three arguments in response. First, they contend that the date on

which Dr. Shaw allegedly committed the tort in question is not readily ascertainable: Dr.

Shaw commenced a course of treatment for Rodriguez that lasted many days, and the statute

of limitations did not actually expire until January 9, 2018.

Second, plaintiffs posit that Texas law provides that the statute of limitations is tolled

when adequate pre-suit notice is provided to the defendant. According to plaintiffs, they

gave such notice, thereby tolling the statute of limitations for a period of 75 days following

delivery of the notice.

Third, plaintiffs maintain that the claims against Dr. Shaw brought on behalf of A.R.

and B.R. are not time-barred because the two-year statute of limitations does not apply to

minors.

B

Because limitations is an affirmative defense, defendants will bear the burden of proof

on this defense at trial. Dennington v. Brinker Int’l Payroll Co., 2010 WL 4352619, at *1

(N.D. Tex. Nov. 3, 2010) (Fitzwater, C.J.). Accordingly, to obtain summary judgment on

this defense, they must “establish ‘beyond peradventure all of the essential elements of the

… defense.’” Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962

(N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th

- 3 -

Cir. 1986)).3

C

Defendants maintain that the only statute of limitations that applies to plaintiffs’

claims against Dr. Shaw arises under Tex. Civ. Prac. & Rem. Code Ann. § 74.251 (West

2003), a provision of the Texas Medical Liability Act (“TMLA”). Section 74.251(a)

provides, in relevant part:

no health care liability claim may be commenced unless the

action is filed within two years from the occurrence of the

breach or tort or from the date the medical or health care

treatment that is the subject of the claim or the hospitalization

for which the claim is made is completed; provided that, minors

under the age of 12 years shall have until their 14th birthday in

which to file, or have filed on their behalf, the claim.

The parties do not dispute that § 74.251(a) governs this case.

This statute of limitations begins to run “from one of three possible dates: (1) the

occurrence of the breach or tort; (2) the date the health care treatment that is the subject of

the claim is completed; or (3) the date the hospitalization for which the claim is made is

completed.” Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex. 1992) (citing Kimball v.

Brothers, 741 S.W.2d 370, 372 (Tex. 1987)). “[T]he Texas Supreme Court has repeatedly

held that a plaintiff may not simply choose the most favorable of the three dates.” Karley v.

Bell, 24 S.W.3d 516, 519 (Tex. App. 2000, pet. denied). “Rather, if the date the alleged tort

3Defendants’ motion refers to the standard for evaluating a statute of limitations

defense in the context of a Fed. R. Civ. P. 12(b)(6) motion to dismiss, which differs from the

standard for a motion for summary judgment.

- 4 -

occurred is ascertainable, limitations must begin on that date.” Shah v. Moss, 67 S.W.3d 836,

841 (Tex. 2001) (citing Earle v. Ratliff, 998 S.W.2d 882, 886 (Tex. 1999)).

Texas courts have held that the date of a tort is ascertainable even where the plaintiff

is complaining of the failure to provide treatment, such as follow-up examinations and

testing. For example, in Rowntree the Supreme Court of Texas addressed a “claim that [the

doctor] breached a duty to perform the proper examinations from which he should have

detected [the complained-of injury].” Rowntree, 833 S.W.2d at 108. The court held that “the

statute of limitations began to run on the date of the alleged wrongful act[,]” which was

“ascertainable from the facts of the case” as the last day that the plaintiff visited the doctor’s

office. Id. Other Texas courts have reached similar conclusions, holding that, where a

plaintiff complains of a physician’s omissions rather than affirmative conduct, the date of the

tort is readily ascertainable as the last date on which the physician had an opportunity to act

but did not. See, e.g., Karley, 24 S.W.3d at 521; Husain v. Khatib, 964 S.W.2d 918, 920

(Tex. 1998) (per curiam); Shah, 67 S.W.3d at 845.

The statute of limitations is tolled for 75 days, however, when timely and proper pre-

suit notice of a health care liability claim is given. In an effort to “encourage parties to

negotiate and settle disputes prior to suit,” Hebner v. Reddy, 498 S.W.3d 37, 42 (Tex. 2016)

(emphasis in original) (quoting Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 189

(Tex. 2012)), Texas law “requires anyone asserting a claim under the [TMLA] to provide

written notice by certified mail to ‘each physician or health care provider against whom such

claim is being made at least 60 days before the filing of a suit.’” Id. (quoting Tex. Civ. Prac.

- 5 -

& Rem. Code Ann. § 74.051(a) (West 2003)). “Providing notice of a health care liability

claim will toll the statute of limitations for seventy-five days, if the notice is ‘given as

provided’ in [the TMLA].” Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 69

(Tex. 2011) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.051(c) (West 2003)).

But “[f]or a claim’s notice and authorization form to toll limitations for 75 days under

Section 74.051(c), they must be sent at least 60 days before filing suit and within the normal

limitations period.” Flanigan v. Nekkalapu, 613 S.W.3d 361, 364 (Tex. App. 2020, no pet.).

And “[t]he notice must be accompanied by the authorization form for release of protected

health information as required under Section 74.052.” Tex. Civ. Prac. & Rem. Code Ann.

§ 74.051(a) (West 2003). Section 74.052 provides an authorization form that is to be

completed by a claimant; the law dictates that “[t]he medical authorization required by this

section shall be in the following form[.]” Tex. Civ. Prac. & Rem. Code Ann. § 74.052(c)

(West 2003).

D

1

Defendants contend that the ascertainable date on which Dr. Shaw allegedly breached

a duty owed to plaintiffs was December 27, 2017, so any claims against him were time-

barred as of December 28, 2019. According to defendants, because the plaintiffs filed this

lawsuit on January 8, 2020, plaintiffs cannot prevail on these claims. Plaintiffs’ first

responsive argument is that the date on which the tort occurred is not ascertainable, so the

statute of limitations began to run on January 9, 2018, when Dr. Shaw ceased treating

- 6 -

Rodriguez. This is true, plaintiffs contend, because “[Dr.] Shaw breached the standard of

care when he failed to follow up on [Rodriguez’s] high-risk pregnancy of which he had

actual notice” and “his responsibility to [Rodriguez] was ongoing until she was no longer his

patient[.]” Ps. Resp. Br. (ECF No. 105) at 28.

Plaintiffs’ argument is foreclosed by Texas law. As discussed above, several Texas

courts—including the Supreme Court of Texas—have held that where the plaintiff complains

of a doctor’s failure to provide certain types of treatment, the date of the tort is ascertainable

and is typically the last time that the doctor examined or otherwise visited with the plaintiff.

Plaintiffs allege that Dr. Shaw failed to adequately follow-up with Rodriguez and provide

ongoing care. This is the precise type of conduct involved in cases such as Rowntree.

Accordingly, the date on which the statute of limitations began to run was the last date that

Dr. Shaw examined Rodriguez. Rodriguez admits that the only time that Dr. Shaw saw her

was on December 27, 2017.

Plaintiffs’ reliance on the Supreme Court of Texas’ decision in Chambers v. Conaway,

883 S.W.2d 156 (Tex. 1993), is misplaced. In Chambers the court held that the physician

whom the plaintiff claimed failed to provide treatment conforming with the applicable

standard of care had failed to establish that the statute of limitations barred the suit against

him. Id. at 159. But the physician in Chambers saw the plaintiff several times, and the court

concluded that the statute of limitations began to run from the last day on which the

physician met with the plaintiff. Id. at 158. Accordingly, Chambers does not undermine this

court’s conclusion in the present case.

- 7 -

2

Plaintiffs next contend that the statute of limitations should be tolled under Tex. Civ.

Prac. & Rem. Code Ann. § 74.051(a). They maintain that they gave notice in compliance

with § 74.051(a) and that the statute of limitations was therefore tolled for 75 days pursuant

to § 74.051(c). The court disagrees.

Defendants have established that the notice letter—which all parties agree is the only

form of notice sent to defendants—is deficient. It was not sent at least 60 days before suit

was filed, as Texas law requires. See Flanigan, 613 S.W.3d at 364; see also Tex. Civ. Prac.

& Rem. Code Ann. § 74.051(c) (West 2003). Accordingly, defendants have established

beyond peradventure that the statute of limitations was not tolled as to Rodriguez’s claims

against Dr. Shaw.4

3

Plaintiffs’ final opposition argument is that the two-year statute of limitations

prescribed by § 74.251 does not apply to any claims brought on behalf of A.R. and B.R.

because they were minors when this suit was filed.

A Texas court of appeals has held that § 74.251 “as applied to minors … is

unconstitutional under the open courts provision contained in article I, section 13 of the

Texas Constitution.” Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App. 2005, pet.

4Defendants also maintain that the notice was deficient because it was not

accompanied by a full list of plaintiffs’ medical treatment providers, as required by statute.

The court need not address this argument because defendants have established that the notice

was deficient in another way.

- 8 -

denied). If § 74.251 nevertheless governs the instant case, then A.R. and B.R., as “minors

under the age of 12 years,” would have had “until their 14th birthday in which to file, or have

filed on their behalf, the claim.” Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (West

2003). But if § 74.251 in fact violates the Texas constitution when applied to minors, then

a different provision of Texas law would provide that the statute of limitations was tolled

until their 18th birthday. See Montalvo v. Lopez, 466 S.W.3d 290, 293 (Tex. App. 2015, no

pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 16.001 (West 2002)). The claims brought

on behalf of A.R. and B.R. fall squarely within either potentially applicable statute of

limitations, and, therefore, are not time-barred.5

E

Defendants have established beyond peradventure that Rodriguez’s individual claims

against Dr. Shaw are time-barred. Accordingly, defendants’ motion for summary judgment

is granted in this respect. Defendants have failed, however, to show that the claims against

Dr. Shaw brought on behalf of A.R. and B.R. are likewise time-barred. Thus the motion for

summary judgment is denied as to those claims.

III

Defendants next move for summary judgment on the ground that plaintiffs have failed

to designate expert witnesses qualified under Fed. R. Evid. 702 and Tex. Civ. Prac. & Rem.

5Defendants argue in their reply brief that there are no claims asserted against Dr.

Shaw on behalf of A.R. and B.R. But this argument ignores significant portions of the third

amended complaint that clearly appear to contain allegations made on behalf of A.R. and

B.R. against Dr. Shaw. See, e.g., 3d Am. Compl. (ECF No. 81) at ¶¶ 131, 133-36, 144.

- 9 -

Code Ann. § 74.401 (West 2003) to testify to the standard of care that Dr. Shaw and Hullett

should have provided to Rodriguez and her twins.

A

Defendants contend that Drs. Carpenter and Meyn are not qualified to testify because

they have not been trained to practice medicine in a correctional setting. Defendants also

maintain that Drs. Carpenter and Meyn do not possess the knowledge and training necessary

to testify because they practice in different specialties from Dr. Shaw and nothing in their

backgrounds qualifies them to testify to Hullett’s obligations as a nurse.

Plaintiffs respond that experts need not practice in the same specialty or setting to

provide relevant, helpful, and reliable opinions. They maintain that doctors can testify to the

standards of care applicable to nurses so long as the doctors are familiar with the standards.

Plaintiffs therefore contend that they have designated expert witnesses whose testimony

adequately establishes the applicable standards of care, deviation from those standards,

causation, and damages.

B

Under both federal and Texas law, plaintiffs bear the burden of establishing that the

testimony of their expert witnesses is admissible. See Daubert v. Merrell Dow Pharm., Inc.,

509 U.S. 579, 592 n.10 (1993) (federal law); see also Baylor Univ. Med. Ctr. v. Biggs, 237

S.W.3d 909, 915 (Tex. App. 2007, pet. denied) (Texas law). Although the standards applied

to determine the admissibility of particular expert testimony are procedural, so the federal

standards typically control in federal court, “[i]t is well-established that a state’s evidentiary

- 10 -

rules can have substantive aspects in certain types of cases.” Coleman v. United States, 912

F.3d 824, 832 (5th Cir. 2019) (citing Conway v. Chem. Leaman Tank Lines, Inc., 540 F.2d

837, 839 (5th Cir. 1976)). And under Fed. R. Evid. 601, state evidentiary rules regarding

witness competence are pertinent when state law provides the rule of decision in a case. Id.

Thus in order to provide admissible testimony for purposes of establishing the standard of

care applicable to plaintiffs’ state-law claims, an expert must “satisfy both Rule 601’s

competency requirements (which in the instant case incorporate the requirements of Texas’s

Section 74.401) and Rule 702’s expert witness admissibility requirements.” Id. at 833.6

C

The court first addresses whether the proposed expert testimony should be admitted

under Rule 702.

1

Under Rule 702, “[t]he court may admit proffered expert testimony only if the

6This rule likely does not apply to plaintiffs’ federal claims brought under 42 U.S.C.

§ 1983. See Coleman, 912 F.3d at 832. A plaintiff asserting a claim under § 1983 is not

required to establish, via expert testimony, the applicable standard of care as a threshold

issue, because a medical malpractice claim brought under state law is wholly distinct from

a constitutional violation. See, e.g., Bass v. Sullivan, 550 F.2d 229, 231 (5th Cir. 1977);

Pierson v. Gonzales, 73 Fed. Appx. 60, 60 (5th Cir. 2003) (per curiam). Indeed, proof of

medical malpractice alone is insufficient to prove a violation of the United States

Constitution. See, e.g., Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

Accordingly, even if the court agreed with defendants’ argument that the expert testimony

proffered by plaintiffs is not sufficient to satisfy the burden established by Texas law, this

conclusion would not be dispositive of plaintiffs’ federal claims. But because the court

concludes that the expert testimony in question comports with both federal and state

standards of admissibility, the court need not resolve this issue in deciding the instant motion.

- 11 -

proponent, who bears the burden of proof, demonstrates that (1) the expert is qualified, (2)

the evidence is relevant to the suit, and (3) the evidence is reliable.” Nunn v. State Farm

Mut. Auto. Ins. Co., 2010 WL 2540754, at *2 (N.D. Tex. June 22, 2010) (Fitzwater, C.J.)

(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)).

The first requirement is that the expert be qualified. “Before a district court may

allow a witness to testify as an expert, it must be assured that the proffered witness is

qualified to testify by virtue of his ‘knowledge, skill, experience, training, or education.’”

United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009) (quoting Rule 702). “Rule 702

does not mandate that an expert be highly qualified in order to testify about a given issue.

Differences in expertise bear chiefly on the weight to be assigned to the testimony by the trier

of fact, not its admissibility.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (citation

omitted).

The second requirement is that the expert’s testimony be relevant. To be relevant,

“expert testimony [must] ‘assist the trier of fact to understand the evidence or to determine

a fact in issue.’” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (quoting

Daubert, 509 U.S. at 591). “Relevance depends upon ‘whether [the expert’s] reasoning or

methodology properly can be applied to the facts in issue.’” Knight v. Kirby Inland Marine

Inc., 482 F.3d 347, 352 (5th Cir. 2007) (quoting Daubert, 509 U.S. at 593); see also Rule

702(d) (requiring that “expert has reliably applied the principles and methods to the facts of

the case”).

The third requirement is that the expert’s testimony be reliable. “Reliability is

- 12 -

determined by assessing ‘whether the reasoning or methodology underlying the testimony

is scientifically valid.’” Knight, 482 F.3d at 352 (quoting Daubert, 509 U.S. at 592-93); see

also Rule 702(c) (requiring that “testimony [be] the product of reliable principles and

methods”). This review is typically conducted by considering the five non-exclusive

Daubert factors.7 But these factors “may or may not be pertinent in assessing reliability,

depending on the nature of the issue, the expert’s particular expertise, and the subject of [the]

testimony.” Kumho, 526 U.S. at 150.

The burden is on the proponent of the expert testimony to establish its admissibility

by a preponderance of the evidence. See Daubert, 509 U.S. at 592 n.10. The inquiry is

flexible in that “[t]he relevance and reliability of expert testimony turns upon its nature and

the purpose for which its proponent offers it.” United States v. Valencia, 600 F.3d 389, 424

(5th Cir. 2010) (citation omitted). “As a general rule, questions relating to the bases and

sources of an expert’s opinion affect the weight to be assigned that opinion rather than its

admissibility and should be left for the [trier of fact’s] consideration.” Viterbo v. Dow Chem.

Co., 826 F.2d 420, 422 (5th Cir. 1987).

2

Applying the Rule 702 framework to the instant case, the court must first determine

7The five nonexclusive Daubert factors are: (1) whether the expert’s technique can

be or has been tested; (2) whether the method has been subjected to peer review and

publication; (3) the known or potential rate of error of a technique or theory when applied;

(4) the existence and maintenance of standards and controls; and (5) the degree to which the

technique or theory has been generally accepted in the scientific community. Daubert, 509

U.S. at 593-94.

- 13 -

whether Drs. Carpenter and Meyn are qualified. Their curricula vitae are extensive and show

that both have undergone several years of training in a relevant field. Dr. Carpenter is board

certified in obstetrics and gynecology, has taught courses in obstetrics and gynecology, and

has published several articles on topics related to obstetrics and gynecology. He is a

reviewer for several relevant academic journals, has served on a number of related

committees, and currently practices medicine in the area of obstetrics and gynecology.

Dr. Meyn is board certified in general pediatrics and in neonatal-perinatal medicine.

He also completed several post-doctoral training programs in pediatrics and neonatology, and

he has published and presented research in these fields. He has practiced neonatology since

2006 and presently practices with a company that provides neonatology services.

Accordingly, both experts are qualified to opine on the issues involved in this case, such as

the standard of care that should be exercised when treating a patient who is pregnant with

twins and displaying signs of imminent labor.

The second factor the court must consider is whether the experts’ testimony will be

relevant. Because they intend to testify to critical issues in this case, such as standard of care,

it is clear that the testimony is relevant.

The third factor is whether the testimony is reliable. The reasoning and methodology

that Drs. Carpenter and Meyn have employed are of a kind used repeatedly in medical

malpractice cases. The doctors testified in their depositions that they reviewed the medical

records of the plaintiffs and relied on their training and knowledge to reach certain

conclusions about the treatment that defendants administered. Because “questions relating

- 14 -

to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion

rather than its admissibility,” Viterbo, 826 F.2d at 422, the court concludes that their

deposition testimony is sufficient to establish that their opinions are admissible. “Vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden

of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” Daubert, 509 U.S. at 596. Those tools remain available to defendants at trial.

Accordingly, the court holds that the testimony of Drs. Carpenter and Meyn is admissible

under Rule 702.

D

The court next turns to the question whether the expert testimony of Drs. Carpenter

and Meyn is admissible under Texas law.

1

In Texas, the plaintiff bears the burden of establishing the standard of care applicable

to the defendant-doctor “as a threshold issue before the factfinder may consider whether the

defendant breached that standard of care to the extent it constituted negligence.” Hannah v.

United States, 523 F.3d 597, 601 (5th Cir. 2008) (citing Quijano v. United States, 325 F.3d

564, 567 (5th Cir. 2003)). “Unless the mode or form of treatment is a matter of common

knowledge or is within the experience of the layman, expert testimony will be required” to

satisfy this burden. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977).

- 15 -

Under Texas law,

[e]xperts are qualified to opine on the applicable standard of

care if they (1) are practicing medicine at the time they give the

opinion or were practicing medicine when the claim arose; (2)

have knowledge of the acceptable medical standards in the

diagnosis, care, or treatment of the condition involved in the

claim; and (3) are qualified on the basis of training or experience

to opine as an expert on those standards.

Morrison v. Asamoa, 648 S.W.3d 628, 644 (Tex. App. 2022, no pet.) (citing Tex. Civ. Prac.

& Rem. Code Ann. § 74.401(a) (West 2003)). Experts are “qualified on the basis of training

or experience,” as a matter of law, “if they are (1) board certified or have other substantial

training or experience in an area of medical practice relevant to the claim and (2) actively

practicing medicine in rendering medical care relevant to the claim.” Id. (first citing

Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 266 (Tex. App. 2009, no pet.)

and then citing Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c) (West 2003)).

Texas law “does not focus on the defendant doctor’s area of expertise but on the

condition involved in the claim.” Thiel, 296 S.W.3d at 267. In other words, “the applicable

‘standard of care’ and an expert’s ability to opine on it are dictated by the medical condition

involved in the claim and by the expert’s familiarity and experience with it, not by the

defendant doctor’s area of expertise.” Id. (citing McKowen v. Ragston, 263 S.W.3d 157, 162

(Tex. App. 2007, no pet.); see also Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App. 1999, no pet.)

(admitting proffered expert testimony from a neurologist regarding standard of care

applicable to emergency room hospitalist). Where the subject matter of the expert testimony

“is common to and equally recognized and developed in all fields of practice, any physician

- 16 -

familiar with the subject may testify as to the standard of care.” Blan, 7 S.W.3d at 745-46

(citing Garza v. Keillor, 623 S.W.2d 669, 671 (Tex. App. 1981, writ ref’d n.r.e.)). Thus an

expert “need not be a specialist in the particular area of the profession for which testimony

is offered.” Owens v. Handyside, 478 S.W.3d 172, 185 (Tex. App. 2015, pet. denied).

Additionally, “[a] physician is qualified to testify as an expert regarding whether a

nonphysician healthcare provider [such as a nurse] departed from the accepted standards of

care” so long as there is a basis to conclude that the expert is familiar with the standard of

care for both nurses and doctors. Harvey v. Kindred Healthcare Operating, Inc., 578 S.W.3d

638, 647 (Tex. App. 2019, no pet.); see also Baylor Med. Ctr. at Waxahachie, Baylor Health

Care Sys. v. Wallace, 278 S.W.3d 552, 559 (Tex. App. 2009, no pet.).

2

Defendants do not challenge the general medical qualifications of Drs. Carpenter and

Meyn. For example, defendants do not suggest that Drs. Carpenter and Meyn are not

actively practicing medicine, as the statute requires. And as already discussed, the curricula

vitae and depositions of Drs. Carpenter and Meyn establish that they possess adequate

knowledge, training, and experience to opine on the condition involved in the instant case.

Defendants’ primary contention is that the testimony of Drs. Carpenter and Meyn is

inadmissible under § 74.401 because they lack experience in a correctional setting. But this

is primarily an objection to the weight to be given to their opinions, which is a question for

the jury to decide as trier of fact, rather than to the admissibility of their testimony.

An expert need not specialize in the same area as the defendant-doctor in order to

- 17 -

provide relevant, admissible testimony. See Owens, 478 S.W.3d at 185. What matters is

whether the expert is familiar with the condition at issue. Thiel, 296 S.W.3d at 267. It

certainly appears from the credentials of Drs. Carpenter and Meyn that they would be

familiar with twin pregnancies and imminent preterm labor, the conditions involved in this

case. And they are both board certified in an area of practice relevant to the instant case:

namely, obstetrics and gynecology and neonatology, respectively.

And Texas courts have previously allowed testimony from experts who practice in

settings markedly different from the one in which the plaintiff’s injury occurred. See, e.g.,

Blan, 7 S.W.3d at 746. Texas law clearly provides that the critical factor is the expert’s

familiarity with the medical condition involved, which plaintiffs have established that Drs.

Carpenter and Meyn have.

Finally, both Drs. Carpenter and Meyn have experience working with nurses,

overseeing the work of nurses, and contributing to some extent to the training of nurses.

Plaintiffs have proved that both are familiar with the standards of care applicable to nurses

in their respective fields of medicine. Therefore, Drs. Carpenter and Meyn are qualified to

testify to the standard of care to which Hullett was expected to adhere in the instant case.

E

The expert testimony that plaintiffs intend to offer from Drs. Carpenter and Meyn

comports with both federal- and state-law standards of admissibility. Accordingly,

defendants’ motion to strike the expert designations of Drs. Carpenter and Meyn is denied,

as is defendants’ motion for summary judgment to the extent it is based on the ground that

- 18 -

plaintiffs have failed to adduce expert testimony establishing the relevant standard of care.

ok * ok

For the reasons explained, the court grants defendants’ motion for summary judgment

with respect to Rodriguez’s individual claims against Dr. Shaw and otherwise denies

defendants’ motion for summary judgment and to strike plaintiffs’ expert witness

designations.

SO ORDERED.

August 16, 2023.

if 4

AA, AS eo AY HA AA L A

DNBY A. FITZWATERS

SENIOR JUDGE

-19-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.