Professional Negligence Law Reporter

Jones v. Waggoner, 2019 WL 2119656 (Tex. App. May 15, 2019).

A Texas appellate court held that a trial court had not erred in denying a defendant’s motion to dismiss based on a plaintiff expert physician’s failure to perform the procedure at issue in the case within the last 20 years.

Alice Waggoner sued physician Carl Jones, alleging he breached the standard of care by performing an endoscopic retrograde cholangiopancreatography (ERCP) before running another, noninvasive test to determine whether an ERCP was necessary. Under Tex. Civ. Prac. & Rem. Code Ann. §74.351, the plaintiff served the defendant with the expert report of Perry Hookman, a physician board certified in both internal medicine and gastroenterology. The defendant moved to dismiss, arguing that Hookman was not qualified as an expert under the Texas Medical Liability Act (TMLA) because he had not performed an ERCP in more than 20 years. The trial court denied the motion.

Affirming, the appellate court noted that an expert report is adequate where it contains sufficient information informing the defendant of the specific conduct at issue and providing a basis on which a court may conclude that the plaintiff’s claims have merit. Citing case law, the court also found that a trial court has discretion to determine whether an expert witness is qualified. Here, Hookman’s report states that he is licensed in two states and provides patient care through seminars and teaching rounds. Moreover, Hookman trains residents at an accredited medical school and has experience treating patients with complaints similar to Waggoner’s. Finding that experts need not be engaged in direct patient care, the court held that in light of Hookman’s extensive experience, it as within the trial court’s discretion to allow his expert report under the TMLA.

Plaintiff counsel: Michael P. Kelly, Dallas.