      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00086-CV



                                Stanley Asher Wigley, Appellant

                                                 v.

          Shannon Medical Center a/k/a Shannon West Texas Memorial Hospital;
                         and Emmette Flynn, M.D., Appellees


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT
       NO. C140288C, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Stanley Asher Wigley appeals from the trial court’s order excluding the opinions of

his expert witness and granting the no-evidence motion for summary judgment filed by Shannon

Medical Center a/k/a Shannon West Texas Memorial Hospital (the Hospital) and Emmette Flynn,

M.D. (collectively, the Defendants). In three appellate issues, Wigley contends that the trial court

abused its discretion in striking his expert as unqualified and erred in granting the Defendants’

summary-judgment motion. We will affirm the trial court’s order.


                                        BACKGROUND

               The following facts are not disputed on appeal. On December 24, 2011, Wigley was

involved in a serious vehicle accident. He was taken to the emergency room at the Hospital as a

trauma patient, and Dr. Flynn was Wigley’s attending physician. Wigley had a complete spinal cord
injury, was rendered quadriplegic, received life-preserving surgeries and intensive treatment, was

placed on a ventilator, and was unable to eat or move for an extended time. He also developed

pressure ulcers (commonly known as bed sores) during his stay at the Hospital.

                After being stabilized and released, Wigley brought health care liability claims

against Dr. Flynn and the Hospital, alleging that Dr. Flynn and the Hospital’s intensive care unit

(ICU) nurses negligently failed to prevent the pressure ulcers from developing. Wigley designated

Dr. Lige B. Rushing, Jr. as his expert. Dr. Rushing filed an expert report, see Tex. Civ. Prac. &

Rem. Code § 74.351(a), and the Defendants did not initially object to the report. Later, after taking

Dr. Rushing’s deposition, the Defendants filed objections to Dr. Rushing’s qualifications, a motion

to exclude Dr. Rushing’s opinions, and a no-evidence motion for summary judgment. See id.

§§ 74.401(e), 74.402(f), 74.403(d). The Defendants’ summary-judgment motion argued that, once

the trial court excluded Dr. Rushing’s opinions, no evidence would remain to support Wigley’s

health care liability claim.

                The trial court granted the Defendant’s motion to exclude Dr. Rushing’s opinions

and summary-judgment motion. In its order, the court made the following findings:


        1. Lige B. Rushing, Jr., M.D. does not have the knowledge of accepted standards of
        care for the diagnosis, care, or treatment of the illness, injury, or condition involved
        in this claim (that is, he does not have the practical knowledge of what is usually and
        customarily done by a practitioner under circumstances similar to those confronting
        the defendant);

        2. Lige B. Rushing, Jr., M.D. is not qualified on the basis of training or experience
        to offer an expert opinion regarding the accepted standard of medical care for a
        Trauma/Critical Care Surgeon, a hospital, or a nurse providing care for a patient who
        suffered a spinal cord injury as the result of a traumatic accident;



                                                   2
        3. Lige B. Rushing, Jr., M.D. is not qualified on the basis of training or experience
        to offer an expert opinion regarding causation or damages in this particular instance;

        4. The opinions of Lige B. Rushing, Jr., M.D. will not aid the jury in this case, and
        the probative value of said opinions is substantially outweighed by the possibility of
        prejudice and confusion; and

        5. The testimony and opinions of Lige B. Rushing, Jr., M.D. should be excluded.


The order stated that “this expert witness will not be allowed to testify as a witness in the trial of this

cause” and that, “because the opinions of Lige B. Rushing, Jr., M.D. have been excluded, [Wigley]

is left with no evidence of the breach of the standard of care or of causation which makes the

Defendants’ request for summary judgment proper.” The court dismissed all of Wigley’s causes of

action. This appeal followed.


                                             DISCUSSION

                Wigley challenges the trial court’s summary judgment. See Tex. R. Civ. P. 166a(i)

(describing no-evidence motion for summary judgment). We review a trial court’s grant of summary

judgment de novo. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017) (citing

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). In this case, the correctness

of the trial court’s summary judgment depends on whether the court properly excluded Dr. Rushing’s

opinions, because Dr. Rushing provided Wigley’s sole evidence concerning essential elements of

Wigley’s claim, including the standard of care, breach of that standard, and causation of Wigley’s

injuries. See Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 179–80 (Tex. 2012) (describing

elements of a health care liability claim). We review the trial court’s decision to exclude Dr. Rushing’s

opinion for an abuse of discretion. See Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996)


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(“The qualification of a witness as an expert is within the trial court’s discretion. We do not

disturb the trial court’s discretion absent clear abuse.”) (citations omitted); Hoffman v. Samples,

No. 10-17-00196-CV, 2017 WL 4413437, at *4 (Tex. App.—Waco Oct. 4, 2017, no pet. h.) (mem.

op.) (“[W]e defer to the trial court on close calls concerning an expert’s qualifications.”).

               In a suit involving a health care liability claim against a physician, an expert witness

is only qualified to opine “on the issue of whether the physician departed from accepted standards

of medical care” if the witness:


       (1) is practicing medicine at the time such testimony is given or was practicing
       medicine at the time the claim arose;

       (2) has knowledge of accepted standards of medical care 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 medical care.


Tex. Civ. Prac. & Rem. Code § 74.401(a). Likewise, in a suit against a health care provider, an

expert witness is only qualified to opine “on the issue of whether the health care provider departed

from accepted standards of care” if the witness:


       (1) is 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) has 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.

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Id. § 74.402(b). Finally,


       in a suit involving a health care liability claim against a physician or health care
       provider, a person may qualify as an expert witness on the issue of the causal
       relationship between the alleged departure from accepted standards of care and the
       injury, harm, or damages claimed only if the person is a physician and is otherwise
       qualified to render opinions on that causal relationship under the Texas Rules of
       Evidence.


Id. § 74.403(a); see Tex. R. Evid. 702 (“A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise if the expert’s

scientific, technical, or other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue.”).

               Dr. Rushing’s expert report and curriculum vitae show that he is board certified in,

and actively engaged in the practice of, internal medicine, rheumatology, and geriatrics. His report

asserts the following regarding his familiarity with pressure ulcers and Wigley’s case:


       In the regular course of my medical practice I have occasion to diagnose and treat
       patients with conditions similar to or identical to Mr. Wigley. During the course of
       my career I’ve provided primary medical care to more than 10,000 patients in
       hospitals, nursing homes, assisted living facilities. I have provided care to patients
       who, like Mr. Wigley, were at high risk for the development of pressure ulcers. I
       have written orders for the care and treatment of these patients and have supervised
       the execution of these orders by RNs LVN’s and CNA’s who were assigned to
       provide the hands on care to my patients. I am therefore intimately familiar with the
       standards of care for the RNs, LVN’s and CNA’s who were providing care to
       Mr. Wigley.

       Based on the comprehensive assessment of the resident, the facility must insure that
       a resident who enters the facility without pressure sores does not develop pressure
       sores unless the individual’s clinical condition demonstrates that they were
       unavoidable and a resident having pressure sores receive the necessary treatment and
       services to promote healing, prevent infection, and prevent new sores from

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        developing. There is nothing in Mr. Wigley’s clinical condition to indicate that his
        pressure ulcers were unavoidable.

        ***

        The care and treatment rendered to Mr. Wigley by the Shannon Medical Center and
        its staff fell below the accepted standards of care in the following ways:

        1. Failed to prevent Mr. Wigley’s pressure ulcers.

        2. Failed to have an effective pressure ulcer prevention program.

        3. Failed to keep appropriate documentation.

        It is my opinion that the failures outlined above proximately caused Mr. Wigley’s
        pressure ulcers.


                This report shows that Dr. Rushing is a physician who is generally familiar with

pressure ulcers. However, nothing in Dr. Rushing’s report, curriculum vitae, or deposition indicate

that he is familiar with the prevention or treatment of pressure ulcers in a trauma or ICU context.

During his deposition, Dr. Rushing affirmed that he does not “hold [himself] out” as an expert or

specialist in the areas of critical care, critical care surgery, emergency medicine, emergency

surgery, intensive care medicine, spinal cord trauma, spinal injury treatment, spinal surgery, or

several other fields.

                An expert witness need not necessarily “have the same specialty as the health care

provider she evaluates.” See Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453,

461 n.37 (Tex. 2017); Keo v. Vu, 76 S.W.3d 725, 732 (Tex. App.—Houston [1st Dist.] 2002, pet.

denied) (“Courts of appeals have also recognized that an expert witness need not be a specialist in

the particular branch of the medical profession for which the testimony is offered.”). Nevertheless,



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an expert must establish that he “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.” Broders, 924 S.W.2d at 153 (emphasis added; quoting Tex. R. Evid. 702).

                For example, in Christus Spohn Health System Corp. v. Castro, No. 13-13-00302-CV,

2013 WL 6576041 (Tex. App.—Corpus Christi Dec. 12, 2013, no pet.) (mem. op.), Castro, the

plaintiff, was injured in a serious vehicle accident and developed pressure ulcers while a patient at

the defendant hospital. Castro sued the hospital and filed two expert reports, both written by

“geriatric specialists with extensive experience in caring for pressure ulcers in hospital and nursing

home settings.” Id. at *1. The hospital objected to the experts’ qualifications and to their reports.

In deciding that the experts were not qualified to opine concerning the pressure ulcers Castro

developed while in ICU, our sister court stated the following:


        Spohn [the defendant hospital] does not dispute that du Bois is an expert in the
        field of nursing home care and Dr. Starer is an expert in the field of geriatrics and
        nursing home care, or that these fields regularly involve the prevention and treatment
        of pressure ulcers. Rather, Spohn argues that neither expert is practicing or has
        otherwise relevant experience in ICU/trauma care, which is the relevant field of
        practice in this case. We agree . . . . [U]nder the facts alleged in his own petition, it
        is clear that the care provided to Castro by Spohn was trauma and ICU care. Castro’s
        pressure ulcer developed in this context, and his experts must be qualified to opine
        on his injury in the context of these conditions.


Id. at *4.

                The court rejected Castro’s argument that the hospital was demanding overly

specific expertise:


        Castro argues that Spohn’s characterization of the relevant field of practice in this
        case sets the bar too high, that Spohn is essentially requiring Castro to find a

                                                   7
        specialist in the treatment of “a 50–year–old quadriplegic with diabetes, PEG tube
        feeding, with a tracheostomy [sic] and neurologic deficits, with prior cardiac arrest
        and suffering from bacterial infections.” This characterization overstates what is
        required in this case. Although it is true that an expert need not be a practitioner in
        the same specialty as the defendant to qualify as an expert, he or she is only
        competent if he or she has practical knowledge of what is usually and customarily
        done by a practitioner under circumstances similar to those confronting the
        defendant. In other words, the proper inquiry in assessing an expert’s qualifications
        to submit a report is not his or her area of expertise but his or her familiarity with the
        specific issues involved in the claim before the court. Here, as discussed above,
        Castro’s petition includes facts showing that the circumstances under which he
        developed his pressure ulcer involved trauma and ICU treatment of his severe
        injuries following the accident. His expert must be qualified to render an opinion on
        the applicable standard of care in those circumstances—i.e., the prevention and/or
        treatment of pressure ulcers in the context of ICU/trauma care. We are not persuaded
        by Castro’s argument to the contrary.


Id. at *4 (citations and footnote omitted).

                Finally, the court explained that it could not conclude “that the information provided

in [the experts’ reports] show them to be practicing in the relevant field of practice or show them

to have any other relevant experience giving them knowledge of the standard of care for the

specific conditions in this case.” Id. at *5 (citation omitted); see Hickory Trail Hosp., L.P. v. Webb,

No. 05-16-00663-CV, 2017 WL 677828, at *5 (Tex. App.—Dallas Feb. 21, 2017, no pet.) (mem.

op.) (“When a physician fails to state in his expert report or affidavit that he has knowledge of the

standard of care applicable to the specific types of health care providers involved in the claim, or that

he has ever worked with or supervised the specific types of health care providers involved in the

claim, the physician is not qualified on the issue of whether the defendant health care provider

departed from the accepted standards of care.”) (quotation marks omitted); Reed v. Granbury

Hosp. Corp., 117 S.W.3d 404, 411 (Tex. App.—Fort Worth 2003, no pet.) (“At most, Dr. Bronston’s

qualifications and testimony demonstrate that he was qualified to give an expert opinion concerning

                                                    8
the standard of care applicable to a physician’s decision of whether to administer t-PA to a stroke

patient. The record does not show that Dr. Bronston possessed any special knowledge about what

protocols, policies, or procedures a hospital of ordinary prudence, with the Hospital’s capabilities,

would have had in place.”).

                Similarly, Dr. Rushing provided no information showing that he is qualified to testify

concerning pressure ulcers that developed while Wigley was a trauma and ICU patient at the

Hospital. The trial court was not required to infer from Dr. Rushing’s general familiarity with pressure

ulcers in other contexts that he is qualified to address pressure ulcers that develop in a trauma

and ICU context. See Webb, 2017 WL 677828, at *5 (“The rule is clear, ‘Qualifications cannot

be inferred.’”) (quoting Millbrook Healthcare & Rehab. Ctr. v. Edwards on behalf of Estate of

Cullens, No. 05-14-00202-CV, 2015 WL 558305, at *3 (Tex. App.—Dallas Feb. 11, 2015, no pet.)).

Therefore, given the record before us and our standard of review, we cannot conclude that the

trial court committed a clear abuse of discretion in excluding Dr. Rushing’s opinions. See Broders,

924 S.W.2d at 151 (“We do not disturb the trial court’s discretion absent clear abuse.”). Furthermore,

because, in the absence of Dr. Rushing’s opinions, Wigley presented no evidence concerning the

Defendants’ standard of care, the alleged breach of that standard, or the causation of his injuries, we

conclude that the trial court did not err in granting the Defendants’ motion for summary judgment.

Accordingly, we overrule Wigley’s appellate issues.1


       1
          The Defendants also argue that we should affirm the trial court’s judgment because
Wigley’s opening brief failed to address an independent ground on which the trial court excluded
Dr. Rushing’s opinions and granted summary judgment (namely, the Defendants’ objections under
Texas Rule of Evidence 403). Because we have overruled Wigley’s issues, we need not address
this argument.

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                                       CONCLUSION

              We affirm the trial court’s order excluding Dr. Rushing’s opinions and granting the

Defendants’ no-evidence motion for summary judgment.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Justices Puryear, Field, and Bourland

Affirmed

Filed: December 1, 2017




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