X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Diagnosed with a brain tumor, Cynthia Powell was referred to Dr. Thomas Windisch for two interventional procedures in preparation for surgery: an angiography and an embolization. After the procedures, it was revealed that Powell had a small hemorrhage on her brain. She eventually suffered from seizures and neurological impairment. Loretta Ray, acting as Powell’s next friend, filed a medical malpractice suit against Windisch. To comply with �13.01 of the Medical Liability and Insurance Improvement Act, Ray attached to her petition a written report from Dr. Gregory Shenk, a radiologist. Shenk’s report opined that Windisch’s care of Powell fell below the acceptable standard of care. Shenk concluded that it was foreseeable and medically predictable that the assumptions made by Windisch in conducting the procedure would cause complications. The report included Shenk’s qualifications and his curriculum vitae. Windisch filed a motion to dismiss Shenk’s report under �13.01(l), which deals with the good-faith effort of a report, and �13.019(r)(6), which defines an expert report. He questioned Shenk’s qualifications to render an expert opinion. The trial court overruled the motion to dismiss, and Windisch sought a writ of mandamus to compel the trial court to dismiss the case. HOLDING:Writ conditionally granted. Ray contends that the Texas Supreme Court’s denial of review health-care liability case indicates its opinion that mandamus relief is not appropriate to correct a trial court’s failure to dismiss a case. The court rules that until it gets a definitive ruling from the court, it will continue to adhere to this court’s previously established view that mandamus is an appropriate remedy in these circumstances. Turning to the merits of the argument, the court examines Shenk’s testimony at the summary judgment motion hearing, as well as his report and CV. Though he is certified in radiology, and he had experience in interventional procedures in the late 1980s, Shenk’s CV does not indicate recent experience in interventional procedures. At the time of his report for Ray, Shenk was the medical director at three magnetic resonance imaging centers, a position he’d been at since 1988. The court refers to two cases where experts’ qualifications have been found lacking where they have expertise in the general area of medical care, but not in the specific procedures at issue in their particular cases. The requirement that a �13.01 report and curriculum vitae set forth the expert’s knowledge of the procedure being questioned is necessary even when the defendant and the expert share certification in the same specialty. Here, except for some conclusory statements, Shenk’s report contains only brief statements of his qualifications. Though he and Windisch are both radiologist, it cannot be presumed that the procedures at issue here are common to any credentialed radiologist. Shenk’s fellowship in neuroradiology and his teaching appointments earlier in his career might indicate familiarity with the interventional procedure Windisch performed, but cannot reasonably be said to demonstrate that he has knowledge of the accepted standard of care for the procedure. “From the four corners of the report and curriculum vitae, we find no basis for a conclusion that Shenk’s training or experience qualify him to offer an expert opinion on the standard of care for the performance of embolization of brain tumors, and we must conclude that the report and curriculum vitae cannot reasonably be read to demonstrate that Shenk is so qualified.” OPINION:Per curiam; Johnson, C.J., Reavis and Campbell, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.