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Click here for the full text of this decision FACTS:Mary Martha Downing sued Dr. Mark D. Larson for medical malpractice over plastic surgery Larson performed around Downing’s eye area. In support of her claim, Downing filed a report by Dr. Martin Bell. Bell was a plastic surgeon who opined that Larson should not have used a particular medical device for the particular procedure, an orbital blowout fracture. Larson objected to Bell’s qualifications. Larson also filed a no-evidence summary judgment motion. He challenged Bell’s affidavit, stating that it had been over 15 years since Bell performed the same procedure, and he has never used the device that Larson used. In response, Downing submitted a faxed affidavit from Bell, his medical report and curriculum vitae, and 36 pages from his deposition. She also included eight pages from Larson’s deposition. The trial court granted Larson’s motion objecting to Bell’s report. Then, without the report, the trial court then granted summary judgment for Larson. HOLDING:Reversed and remanded. The court first finds that the faxed copy of Bell’s affidavit was not inappropriate, and the trial court should not have granted Larson’s objection on this ground. The court then finds that Bell’s report did not contain conclusory statements. Instead, the court says he explained with particularity what the standard of care was and explained how Larson failed to meet it and how damage resulted. The court also rejects Larson’s objection that a particular deposition excerpt was hearsay because it relied in part on an opinion by a doctor whose affidavit was not attached. The court notes that the other doctor’s report was eventually entered in a court-authorized supplement. Larson’s objection that certain of Bell’s deposition answers were inadmissible because they were adduced through leading questions is rejected by the court because Larson did not object to the form of the question during the deposition. As for Larson’s objection that Bell was not qualified as an expert, the court finds that Bell’s qualifications are fully established by Bell’s affidavit, deposition testimony and CV. He’s board-certified in plastic and reconstructive surgery and was actively practicing medicine when the claim arose. He had knowledge of the accepted standards of medical care and for treatment of the injury involved in the claim. Finally, the court rules that the trial court should not have sustained the objection based on the fact that Bell had not performed the same procedure in 15 years and had never performed the procedure using the same device. The medical malpractice statute does not require that the expert personally perform the operation in question, the court points out. In fact, the statute expressly provides that teaching and consultation with physicians providing direct care constitute practicing medicine. Furthermore, no summary judgment evidence supports an argument that there is a significant distinction between the device Larson used and the one Bell used when he last performed the same procedure. OPINION:McKeithen, C.J.; McKeithen, C.J., Burgess and Gaultney, JJ. DISSENT:Gaultney, J. “In cases like this, the legislature has specified that the trial court shall consider whether a medical expert ‘is actively practicing medicine in rendering medical care services relevant to the claim.’ . . . It is undisputed that Dr. Bell is not currently performing the type of surgery involved in this claim. It is not an abuse of discretion for the trial court to rely on a consideration mandated by statute.”

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