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Click here for the full text of this decision FACTS:Mark Vicento was injured in an automobile accident, and sought chiropractic treatment from Edward F. Group III. Two months later, in November 2001, Group referred Vicento for an MRI but continued to treat Vicento for another year. Vicento had back surgery in 2003. Vicento filed a medical malpractice suit against Group, claiming that Group should have referred him to a spine surgeon following the MRI because the delay in surgery aggravated his spinal injury. Specifically, Vicento claims Group was negligent in failing to comply with the standard of care by failing to timely and adequately: 1. test; 2. assess; 3. diagnose; 4. treat; and 5. refer Vicento to a specialist when his condition worsened and deteriorated. Vicento filed an expert report by Dr. Rezik Saqer. Group filed a motion to dismiss, based on the alleged inadequacy of the report under Texas Civil Practices & Remedies Code 74.351. Group alleged that Saqer was not qualified to give an opinion on the chiropractic standard of care because Saqer was not himself a chiropractor. Vicento was given 30 days to file another report, which he did. Group filed another motion to dismiss. He argued that Saqer was not qualified to render an opinion on the chiropractic standard of care ,because he does not fit the statutory definition of “practicing health care” and is not qualified “on the basis of training and experience” as these terms are defined by 74.402. He also argued that Saqer’s report did not state how Group deviated from the chiropractic standard of care. Finally, Group argued that Saqer’s report did not comply with 74.403 because it failed to state how Group’s actions caused any injury to Vicento. The trial court denied Group’s second motion to dismiss, and Group appeals. HOLDING:Affirmed. The court notes that the legislature made changes to 74.402 in 2003. Now, an expert providing opinion testimony about how a “health care provider,” such as chiropractor like Group, departed from accepted standards of health care must be qualified to testify under the requirements of 74.402. Subsection (b) of that provision lists three specific qualifications an expert witness must meet: 1. practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose; 2. knowledge of accepted standards of care for health care providers for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and 3. is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. “Practicing health care” is defined as including: “(1) training health care providers in the same field as the defendant health care provider at an accredited educational institution; or (2) serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.” And to determine whether an expert “is qualified on the basis of training or experience” under subsection (b)(3), a trial court is to consider whether the expert: 1. is certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and 2. is actively practicing health care in rendering health care services relevant to the claim. The court says that in contrast to an expert who provides opinion testimony about how a health-care provider departed from accepted standards of health care, an expert who provides opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in a health care liability claim must be a physician who is otherwise qualified to render opinions on such a causal relationship under the Texas Rules of Evidence. The court says it is the first time it has considered the application of the new version of 74.402. First addressing whether Saqer meets the standards of “practicing health care” under 74.402(a) and (b)(1), the court rejects Group’s argument that that phrase requires means that Saqer would have to a chiropractor, train chiropractors at an accredited educational institution, or serve as a consulting health care provider to chiropractors and be licensed, certified, or registered as a chiropractor. Group’s interpretation improperly limits and confines the definition. Reading the two subsections together, the court finds that subsection (a) expands upon the definition of “practicing health care” to include qualified teachers and consulting health care providers who may not otherwise be qualified under subsection (b)(1) because they are not practicing health care and instead teach or consult. And, under the literal language of subsection (b)(1), the expert only must practice health care in a field of practice involving the same type of care or treatment. The court next addresses Saqer’s qualifications under each subsection. Although Saqer does not train chiropractors at an accredited educational institution, does not serve as a consulting health care provider to chiropractors, and is not licensed, certified, or registered as a chiropractor, these facts are not determinative of the doctor’s qualifications under subsection (b)(1). Rather, the focus of the court’s inquiry is whether Saqer practices health care in a field of practice that involves the same type of care or treatment as that delivered by Group, which he does. In the report, Saqer refers details some of the techniques he is allowed to do that Group isn’t, and vice versa, as well as the general and specific conditions both are qualified to treat. Saqer is thus “practicing health care” in a field of practice that involves the same type of care or treatment as chiropractor Group, which satisfied 74.402(b)(1). Saqer explains in his report he has knowledge of the accepted standards of care for chiropractors for the diagnosis, care, and treatment of the type of injury involved in this claim. Thus, he satisfies 74.402(b)(2). Saqer’s report further shows he is actively practicing health care services relevant to Vicento’s claim. Thus, he satisfies 74.402(c)(2), too. OPINION:Anderson, J.; Anderson, Hudson and Frost, JJ.

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