Majority and Concurring Opinions filed January 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00331-CV
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WILLIAM DAVIS, Appellant
V.
JOHN Q. A. WEBB, JR. M.D., Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2006-64184
C O N C U R R I N G O P I N I O N
Appellant William Davis brought suit against John Q. A. Webb, Jr. M.D., for his failure to provide appropriate post-operative treatment. This failure led to serious medical problems for which Davis sought recovery, but that recovery was barred because of a defect in his expert report. Although timely served, the expert report did not reflect the opinion of a Aphysician@ under Texas Civil Practice and Remedies Code section 74.401. Instead, Davis offered the expert opinion of an optometrist who was proficient and trained in post-operative treatment and care. The trial court dismissed the lawsuit with prejudice, and a majority of this court upheld that dismissal, in accordance with the statutory requirements of Texas Civil Practice and Remedies Code sections 74.351 and 74.401. Unfortunately, sections 74.351 and 74.401 were drafted, in all likelihood inadvertently, in such a way as to create the occasional miscarriage of justice. Hence, although I agree the majority opinion is in accord with a plain reading of these sections, I cannot agree with the application of this statute under these circumstances for two reasons.
First, when a physician is engaged in the work that only a physician may render, the requirement that another physician opine concerning that treatment logically follows. When, however, a physician fails to provide the type of treatment he could have delegated to another, or the type of treatment another often performs, this negligence should not be shielded by his medical degree. In these situations, the physician is Awearing another hat,@ and the individuals who most often adorn that hat might be aptly trained to opine as to the standard of care or causation. Such might be true when a physician performs medical care at the site of an accident where an EMT would be best qualified to testify as to on-scene standards of care, or when a physician refers an injured patient to a physical therapist or chiropractor who, though not a physician, may have greater training and experience in rehabilitation and might be best qualified to opine as to causation in a review of post-operative care. Such is arguably true, as in the present case, where an optometrist is well-trained in post-operative treatment and is often charged by an ophthalmologist to conduct this very care. When a doctor provides the type of after-care that another professional could provide, and does so negligently, his credentials should not force the plaintiff to face a higher predicate to bringing suit. In fact, the non-physician professional may be more equipped to perform the follow-up treatment, and that non-physician may be the more appropriate person to opine on the quality of treatment provided.
Second, our application of Texas Civil Practice and Remedies Code sections 74.351 and 74.401 creates a dual standard in our courts, whereby an individual cannot be an expert for the purposes of an expert report unless he is a physician, but for the same individual to testify at trial the court could conduct the more permissive Daubert/Robinson test. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). If the court is capable of being the gate-keeper at trial, the same latitude should be allotted the court in analysis of the expert report.
The Legislature drafted Texas Civil Practice and Remedies Code sections 74.351 and 74.401 with an eye toward reducing the number of frivolous medical malpractice lawsuits in Texas, but in so doing failed to consider many possible scenarios where an expert who is not a physician might be qualified to opine as to the standard of care and/or causation in a case pursued against a physician.
Accordingly, while concurring in the disposition of this case under the current law, I believe the application of the law to all fact-scenarios is problematic and can lead to the miscarriage of justice in some instances.
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Frank C. Price
Senior Justice*
Judgment rendered and Memorandum Opinion filed January 22, 2008.
Panel consists of Chief Justice Hedges, Justices Guzman and Price.
* Senior Justice Frank C. Price sitting by assignment.