Ehrlich v. Miles

The court holds that appellant's expert was not qualified to testify to all of the statements made in his report, that the causation portion of his report does not specify that the individual acts that he is qualified to testify about independently caused the injury, and appellant does not qualify for an extension to file an expert report.

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Click here for the full text of this decision FACTS:Ilene Ehrlich went to Dr. William Miles for face-lift surgery and to get cheek implants. The implants became infected, and eventually had to be removed by another doctor. The implant surgery and subsequent treatment caused permanent nerve damage in Ehrlich’s face. Ehrlich filed a medical malpractice suit against Miles. As required by the Medical Liability and Insurance Improvement Act, Ehrlich timely filed an expert’s report. The report was made by Dr. Charles Marable, who was board certified in neurology and forensic medicine. Marable’s report set out the elements of medical malpractice suit and set out the standards of care needed in facial implant surgery. Marable faulted Miles for not warning Ehrlich of the risks and complications and stated that he believed Miles acted with negligence. Miles moved to dismiss the report as insufficient, saying Marable was not qualified as an expert, and that the report was not a good faith effort to comply with the statute. The trial court granted the motion, and denied Ehrlich’s motion for an extension of time. HOLDING:Affirmed. The court finds that in determining whether the expert is qualified on the basis of training and experience, it is to consider whether, at the time the claim arose or the testimony was given, the witness is board-certified or has other substantial training or experience in an area of practice relevant to the claim, and is actively practicing medicine in rendering medical care services relevant to the claim. However, doctors who are not from the same school of medicine may still testify if he or she has practical knowledge of what is usually and customarily done by a practitioner under circumstances similar to those that form the basis of the suit. In this case, as a neurologist and expert in forensic medicine, Marable was qualified to testify about the numbness and pain Ehrlich felt in her face, as well as any treatment of the infection. But, nothing in Marable’s qualifications indicates that he is familiar with either of the surgical procedures Ehrlich underwent. Therefore, Marable was not qualified to give an expert opinion regarding those procedures. After removing statements Marable made about those procedures, the court looks to see if there is enough left of Marable’s statement to make the remainder stand up to a good faith effort. To be a good faith effort, the report must first inform the defendant of the specific conduct being called into question. It must also provide a basis for the trial court to conclude the claims in question have merit. Examining the substance of Marable’s testimony — instead of looking for the use of technical words the court holds that the report does not hold up. “Although the report provides direct statements of the standards of care required, [Miles'] breaches of that standard of care, and the procedure that should have been followed, after removing the statements in the report that Dr. Marable is not qualified to make in this case, the report does not clearly address the element of causation. The report simply states the”negligent activity that I listed above is the proximate cause of this patient’s pain and suffering.’ The report fails to state whether each negligent activity listed above independently caused [Ehrlich's] pain and suffering or if each negligent activity combined to cause her pain and suffering.” The court then holds that the trial court did not abuse its discretion in denying Ehrlich’s motion for continuance, noting that the Texas Supreme Court has held that mistakes of law concerning the medical malpractice statute do not negate a finding of intentional or conscious indifference. OPINION:Dauphinot, J.; Dauphinot, Holman and Gardner, JJ.

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