• Texas & Utah Split on Expert Testimony Requirement in Health Cases
  • March 17, 2008
  • Law Firm: Holland & Hart LLP - Denver Office
  • Two recent cases in Texas and Utah dealing with the requirement of expert testimony in health cases underscore the principal that “law is common sense as amended by the legislature. The Utah Supreme Court in Bowman v. Michael A Kalm, M.D., determined that, while an expert witness is generally required to establish breach of the standard of care and causation of damages because most medical malpractice cases depend upon knowledge of scientific effect of medicine, such requirements do not apply to issues where the factual determination rests upon the common knowledge of the lay jury.

    In Bowman, the defendant prescribed sleeping pills to a depressed patient who was known to overuse sleeping pills, which made her drowsy and clumsy.

    She was found wedged between her bed and a bedroom dresser. She apparently died due to asphyxiation due to the mechanical compression of the chest. The plaintiff provided expert testimony on breach of the standard, but not causation. The Court concluded that the lack of expert testimony for causation was excused because the cause of death was subject to the “common knowledge” of the jury such as when the wrong limb is amputated or a surgical instrument is left in the body.

    In Texas, however, the requirements for an action against a health care entity are governed by the rules set for the Texas Civil Practice and Remedies Code. Section 74.351(a) of the Code provides that a plaintiff must serve on each party one or more expert reports asserting breach of the standard of care and causation for all claims falling within the rubric of”health care liability claim.” Failure to file an expert report leads to an obligatory dismissal of the claim. This rule is mechanically applied to all health care liability claims in Texas and leads to anomalous results.  In Holguin v. Laredo Regional Medical Center, L.P. the plaintiff sued the hospital alleging negligent failure to protect him from a sexual assault while he was a patient. The Texas Court of appeals found that the case was a health care liability case and therefore required an expert.

    It is not within the common knowledge of the general public to determine the ability of patients in weakened conditions to protect themselves, nor whether a potential target of an attach in a healthcare facility should be better protected and by what means.

    I am sorry, but that is what juries do every day in far more complicated cases. There is no medical expertise required here. Regardless of the merits of Mr. Holguin’s case, this decision was an exemplar of the triumph of ritual over reason and the Procrustean overlay of code on reasoned common law.