State Appellate Court Finds That Physician is Qualified as an Expert Witness Even Though Not Currently Engaged in Active Practice

A Texas Appellate Court has held that a trial court had not erred in denying a defendant’s motion to dismiss based on a plaintiff expert physician’s failure to perform the procedure at issue in the case within the last 20 years.

Alice Waggoner sued physician Dr. Carl Jones, maintaining that he breached the standard of care by performing an endoscopic retrograde cholangiopancreatography (ERCP) before running another noninvasive test to determine whether an ERCP was necessary.

Under Texas law, the plaintiff served the defendant with an expert report by Dr. Perry Hookman, a board-certified physician in both internal medicine and gastroenterology.

The defendant Dr. Jones moved to dismiss the case arguing that Dr. Hookman was not qualified as an expert under the Texas Medical Liability Act because he had not performed an ERCP in more than 20 years. The trial judge denied the motion.

In affirming the trial court’s decision, the appellate court noted that an expert report is adequate where it contains sufficient information informing the defendant of the specific conduct at issue and providing the basis on which a court may conclude that the plaintiff’s claims have merit.

Citing case law, the appellate court also found that a trial court has discretion to determine whether an expert witness is qualified. In this case, Dr. Hookman’s report states that he is licensed in two states and provides patient care through seminars and teaching rounds.

Moreover, the appeals panel found that Dr. Hookman trains residents at an accredited medical school and has experience treating patients with complaints similar to Waggoner’s.

Finding that experts not be engaged in direct patient care, the appellate court held that in light of Dr. Hookman’s extensive experience, it was within the trial court’s discretion to allow this expert report under the Texas Medical Liability Act.

The attorney representing Alice Waggoner was Michael P. Kelly.

Jones v. Waggoner, 2019 WL 2119656 (Tex. App. May 15, 2019).

Kreisman Law Offices has been handling medical negligence lawsuits, birth trauma injury lawsuits, traumatic brain injury lawsuits, nursing negligence cases and nursing negligence lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Elk Grove Village, Hoffman Estates, South Barrington, Lake Zurich, Buffalo Grove, Highwood, Winnetka, Wilmette, Prospect Heights, Westchester, Oak Brook, Hinsdale, Wheaton, Burr Ridge, Hickory Hills, Alsip, Blue Island, South Holland, Homer Glen, Orland Park, Orland Hills, Chicago (Roseland, East Side, Washington Heights, Beverly, Roscoe Village, Woodlawn, McKinley Park, Little Village, Garfield Ridge, Marquette Park, Auburn Gresham, Chatham, South Chicago, Near South Side, East Garfield Park, Wicker Park, Lincoln Park), Maywood, Forest Park, Stickney, Bedford Park, Dixmoor, Lansing and Palos Park, Ill.

Robert D. Kreisman has been active member of both the Illinois and Missouri bars since 1976.