                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00284-CV

ROYAL H. BENSON, III, M.D.,
                                                         Appellant
v.

JENNIFER S. HALL AND SCOTT M. HALL,
                                                         Appellees


                          From the 272nd District Court
                               Brazos County, Texas
                         Trial Court No. 08-002788-CV-272


                           MEMORANDUM OPINION


       Royal H. Benson, III, M.D. appeals the denial of his motion to dismiss pursuant

to section 74.351(b) of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(b) (Vernon Supp. 2009). Because the trial court did not abuse

its discretion in determining the expert is qualified to render an expert opinion, we

affirm the judgment of the trial court.

       Jennifer Hall consulted with Benson and on the same day, Benson performed

gynecological cosmetic surgical procedures. Hall later filed a lawsuit against Benson
alleging that Benson was negligent in performing the surgical procedures.                 Hall

submitted an expert report by Dr. Bruce Halbridge.

       In one issue, Benson contends that the trial court abused its discretion in denying

his motion to dismiss because Hall failed to show that Halbridge was qualified to

provide opinions on the standard of care for performing the surgical procedures.

       We review a trial court's denial of a motion to dismiss under section 74.351 for

abuse of discretion. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per

curiam); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001).

Similarly, we review a trial court's determination of whether a physician is qualified to

give an opinion in a health care liability case under an abuse of discretion standard.

Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (per curiam); Baylor College of Med.

v. Pokluda, 283 S.W.3d 110, 116-117 (Tex. App.—Houston 14th Dist. 2009, no pet.).

       To provide opinion testimony in a healthcare liability claim, the expert must be

qualified to do so. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5) (Vernon Supp.

2009). Qualifications must appear in the expert report and cannot be inferred. Baylor

College of Med., 283 S.W.3d at 117 (citing Olveda v. Sepulveda, 141 S.W.3d 679, 683 (Tex.

App.—San Antonio 2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App.—

Dallas 2003, pet. denied)). To be qualified to provide opinion testimony regarding

whether a physician departed from the accepted standard of health care, an expert must

satisfy section 74.401. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(A) (Vernon

Supp. 2009). Section 74.401 provides in relevant part:



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            (a) In a suit involving a health care liability claim against a physician for
           injury to or death of a patient, a person may qualify as an expert witness
           on the issue of whether the physician departed from accepted standards of
           medical care only if the person is a physician who:

                                               ***
                  (3) is qualified on the basis of training or experience to offer an
           expert opinion regarding those accepted standards of medical care.

                                                 ***
           (c) In determining whether a witness is qualified on the basis of training or
           experience, the court shall consider whether, at the time the claim arose or
           at the time the testimony is given, the witness:

                  (1) is board certified or has other substantial training or experience
           in an area of medical practice relevant to the claim; and

                  (2) is actively practicing medicine in rendering medical care
           services relevant to the claim.

Id. § 74.401(a), (c) (Vernon 2005).

           Benson takes issue with the expert’s qualifications pursuant to subsection (c)(2).

Benson argues that there was no evidence that Halbridge had performed two of the

procedures, the vaginoplasty and the clitoral hoodectomy, 1 in the last 33 years and no

evidence of when Halbridge had last performed or how many times he had performed

the remaining procedure, the labioplasty. Thus, his argument continues, the trial court

had no basis to conclude that Halbridge “was actively practicing medicine providing

the care relevant to [Hall’s] claim at the time the claim arose or currently.”

           Benson relies primarily on three cases to support his argument. His reliance on

those cases is misplaced. Citing to Larson v. Downing, 197 S.W.3d 303 (Tex. 2006),

Benson asserts that the Texas Supreme Court has held that an expert is not qualified on

1   This procedure is not mentioned specifically in Hall’s petition.

Benson v. Hall                                                                              Page 3
surgical procedures if the expert has not performed the procedure in at least eleven

years. But in Larson, it was the trial court that excluded the plaintiff's expert because it

had been fifteen years since he had performed surgery like that performed by the

defendant. In affirming the trial court’s decision, the Supreme Court said, “[w]hether to

exclude Bell's testimony is a close call on this record. Close calls must go to the trial

court.” Id. at 304. The Supreme Court did not impose a time frame within which an

expert must perform a procedure to be qualified to render an expert opinion.

       Benson also relies on the Dallas Court’s opinion in Chester v. El-Ashram, 228

S.W.3d 909 (Tex. App.—Dallas 2007, no pet.) to support his argument. As in Larson, the

trial court excluded the expert’s testimony. The Dallas Court held that because the

expert admitted that he did not order tests such as those ordered for the plaintiff, did

not serve as the primary treating physician for patients with conditions similar to

plaintiff's, and although the expert stated he evaluated patients for surgery who present

with conditions similar to those of the plaintiff, did not explain how evaluating a

patient for a surgical procedure rendered him qualified to testify about the care the

plaintiff, who was not admitted for a surgical procedure, should have received, the trial

court did not abuse its discretion in excluding the testimony. Id. at 914. Again, the

Dallas Court did not impose a time frame within which an expert must perform a

procedure to be qualified to render an expert opinion.

       The third case Benson places reliance on for his argument that Dr. Halbridge is

not qualified is In re Windisch, 138 S.W.3d 507 (Tex. App.—Amarillo 2004, no pet.).

Benson contends that the Amarillo Court reversed a denial of a motion to dismiss

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because the expert’s experience during his fellowship and earlier in his career did not

make him qualified to render an opinion on a procedure that he had not performed in

14 years. That is not an accurate depiction of the court’s holding. Although part of the

holding, the court was more concerned with the conclusory nature of the expert’s

statement of his qualifications. There was a gap between the expert’s earlier career and

the procedure complained of that was not “bridged” by the conclusory references to the

expert’s “’extensive’ background in neuroradiology.” Id. at 513-514. No specific time

frame was required.

       Benson construes the statute too narrowly. Rather than having the trial court

consider whether the expert is actively practicing medicine in rendering medical care

services relevant to the claim as the statute requires, Benson would require the trial court

to find the expert not qualified if he had not performed a procedure within a specific

and short period of time from the time the claim arose or when the testimony is given.

The phrase “relevant to the claim” is broad, not narrow. And generally, qualification of

an expert depends on whether the offering party has established that the expert has

knowledge, skill, experience, training, or education regarding the specific issue before

the court which would qualify the expert to give an opinion on that particular subject.

Roberts v. Williamson, 111 S.W.3d 113, 121 (Tex. 2003).

       Hall alleged in her petition that Benson was negligent in performing labioplasty

and vaginoplasty surgical procedures. In his report, Halbridge stated that he is a

medical doctor currently licensed to practice in obstetrics and gynecology. He stated

that during his four year residency training in obstetrics and gynecology, he trained at

Benson v. Hall                                                                        Page 5
the Bronx Municipal Hospital Center and the Brookdale Hospital Medical Center. Each

medical center had 1000 beds and was a large and busy clinic facility. He also stated

that the volume of cases and the presence of well trained and very experienced doctor-

professors enabled him to learn labioplasty, vaginoplasty, and surgery involving the

clitoris by performing hundreds of such cases.2 During the third year of his residency,

he very frequently operated with an oncologic surgeon who was the Chairman of the

Department of Obstetrics and Gynecology at the Brookdale Hospital Medical Center.

That surgeon personally trained Halbridge in all surgeries involving the vulvar

structures including the labia minor, labia majora, the clitoris, and its hood including

the underlying blood supply and lymph nodes. The majority of the cases Halbridge

saw involved benign diseases of the vulva and vagina that included vaginal laxity and

associated labioplasty.       The obstetrical part of his training included repairs and

reconstruction of labias damaged during childbirth. Halbridge stated that the total

number of both gynecological and obstetrical cases where repair, revision of the labia,

or reversal of previous injury that he performed during his training years totaled more

than 400 cases. He further stated that in the 33 years of clinical practice since his

graduation from residency, he has performed numerous labioplasty surgeries as well as

repairs of labial injuries.

       Halbridge’s Curriculum Vitae reveals that he is board certified in obstetrics and

gynecology.      He is also a Fellow in the American College of Obstetricians and


2 We note that a portion of the report addresses the counseling and additional testing necessary before
performing surgery of this nature, particularly the clitoral hoodectomy. He opined that under the
circumstances, the surgery should not have been done due to inadequate patient counseling and testing.

Benson v. Hall                                                                                  Page 6
Gynecologists. From 1989 through 1996, Halbridge has been a chief of the OB/GYN

department at three hospitals, a vice chief of staff at one hospital, and a chief of staff at

one hospital. In 2006, Halbridge was a member of a peer review committee at Memorial

Hermann Hospital-Southwest.

       The trial court was required to consider whether Halbridge was actively

practicing medicine in rendering medical care services relevant to the claim. In reviewing

the report and curriculum vitae, we cannot say that the trial court abused its discretion

in finding Halbridge qualified to render an expert opinion. Benson’s sole issue is

overruled.

       Having overruled the only issue on appeal, we affirm the trial court’s judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed February 3, 2010
[CV06]




Benson v. Hall                                                                         Page 7
