FIRST COURT OF APPEALS REFUSES TO DISMISS MED-MAL CASE FOR UNQUALIFIED EXPERT
Hillery v. Kyle, First Court of Appeals (Houston), May 17, 2012 [No. 01-11-00708-CV]
Melinda Kyle was admitted to a hospital with gangrene in her right toe. She was treated by her attending doctor, a cardiologist, a vascular surgeon, and then finally Dr. Hillery, a general surgeon. Hillery amputated Kyle's right leg. After the surgery, Hillery failed to order a Heparin drip to continue, which had been used to prevent clotting. About 2 weeks later, she had a stroke and was declared brain dead. She died six days later. Melinda's heirs brought a health care liability claim against Hillery and others. As required, they filed an expert report prepared by Dr. Goldman, a cardiologist. Hillery moved to dismiss the lawsuit, since a cardiologist was not qualified to offer opinions on the standard of care applicable to a general surgeon. Hillery also objected that Dr. Goldman’s opinion was conclusory because it failed to link the facts of the case to his conclusion that Hillery’s breach of the standard of care caused Melinda’s death. The Fort Bend County judge denied Hillery's motion to dismiss
On appeal, the First Court of Appeals looked at whether Goldman was qualified. The statute requires that the expert be a physician who actually practices medicine, has "knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim", and is qualified through training or experience to offer an expert opinion regarding those accepted standards of medical care. Not surprisingly, Hillery claimed that Goldman was not qualified to offer opinions in the areas of general surgery or amputation. However, the case law and statute do not require that the expert practice in the same field as a defendant in a health care liability claim. The expert only has to have knowledge of the condition involved in the claim. 
Hillery also claims that he was “consulted solely regarding amputation” and was not asked to provide any other care. But Hillery's performance on the amputation surgery wasn't the basis of the suit. Instead, the basis of the claim and the focus of Goldman’s report was the failure to properly anti-coagulate Melinda following the surgery. Hillery didn't clam that Goldman, who is board-certified in cardiovascular diseases and internal medicine, was not qualified to offer an opinion on the standard of care relating to the need to administer anti-coagulation medication following surgery.