                              NUMBER 13-08-00222-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JOSE R. CARRERAS, M.D.,                                                         Appellant,

                                             v.

JULIAN TREVINO,                                                                  Appellee.


               On appeal from the County Court at Law No. 5
                        of Hidalgo County, Texas.


                                     OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
                    Opinion by Chief Justice Valdez

       Appellant, Jose R. Carreras, M.D., appeals the denial of his motion to dismiss a

healthcare liability claim brought by appellee, Julian Trevino. See TEX . CIV. PRAC . & REM .

CODE ANN . § 51.014(a)(9) (Vernon 2008). In a single issue, Carreras contends that the trial

court abused its discretion by finding that the statutorily required expert medical report was
adequate because it was rendered by a physician who did not demonstrate his

qualification. Id. § 74.351 (Vernon Supp. 2008), § 74.401 (Vernon 2005). We reverse and

remand.

                                         I. BACKGROUND

       On April 17, 2006, Carreras, an orthopedic surgeon, performed a total right knee

replacement surgery on Trevino. At several post-operative follow-up visits with Carreras,

Trevino complained of severe and disabling pain, but Carreras allegedly ignored Trevino’s

concerns. Trevino was then treated by a different orthopedic surgeon, who performed a

second total right knee replacement.

       On August 28, 2007, Trevino filed a healthcare liability claim against Carreras

alleging that:

       1.        The surgery was incomplete or inadequate in that the total knee
                 replacement was not properly aligned, resulting in extreme pain.

       2.        The surgery was incomplete or inadequate in that the femoral
                 component of the prosthesis was loose.

       3.        The surgery was incomplete or inadequate in that the tibial
                 component of the prosth[esis] was undersized.

       4.        The surgery was incomplete or inadequate in that there were pieces
                 of methyl methacrylate remaining in the joint.

       5.        When [Trevino] returned to Dr. Carreras on multiple occasions
                 complaining of severe and disabling pain in the right knee, the Doctor
                 failed [to] inquire, test, and evaluate the surgery to determine that the
                 total knee replacement was incomplete or inadequate.

       6.        Dr. Carreras relied upon pain medication and anti-inflammatory
                 medication for patient control rather than discovering the problem with
                 the surgery and correcting it.


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Carreras answered with a general denial. On December 21, 2007, Trevino, in an effort to

comply with section 74.351’s expert report requirement, tendered the affidavit and

curriculum vitae of William R. Martin, M.D. See id. Martin, an interventional radiologist,

provided the following pertinent affidavit testimony:

       I have knowledge of the accepted standards of medical care for the
       diagnosis, prevention, care, treatment and cure of knee degeneration and
       the diagnosis, prevention, care, treatment and cure of knee replacement by
       virtue of my education, training and experiences in treating patients who
       sustained knee injuries and who had knee degeneration either due to natural
       processes such as osteoarthritis, or due to the effect of their injuries.

       I have reviewed medical records provide[d] from Dr. Carreras and Dr. Marina
       [the orthopedic surgeon who performed the second total right knee
       replacement], including the operative reports. I have not been provided with
       x-rays taken before or after the right knee replacement.

       ....

       Based on [a review of the] record, and my own experience and expertise, I
       conclude that Dr. Carreras was below the relevant standard of care in [his]
       care and treatment of Julian Trevino on April 17, 2006 in that 1) he did not
       properly align and secure the jig for cutting the tibia and femur in Mr.
       Trevino’s right knee, 2) he did not properly align and secure the prosthesis
       for the knee, and 3) he did not perform a final flexion testing of the knee
       before closing the surgical wound and after cementing the prosthesis to the
       knee bones. It is further my opinion that Dr. Carreras was below the relevant
       standard of care in his care and treatment of Julian Trevino from April 17,
       2006 to August 30, 2006 in disregarding Mr. Trevino’s complaint of abnormal
       pain, and not discovering the misalignment of the knee. It is further my
       opinion that the neglect by Dr. Carreras was a cause of the additional
       surgical procedures . . . .

On January 9, 2008, Carreras objected to Martin’s report on the grounds that (1) Martin

was not qualified to offer an expert medical opinion, and (2) the report was conclusory as

to causation. Carreras moved for dismissal and an award of attorney’s fees. Trevino

responded by arguing that Martin was qualified on the ground that “it is common

knowledge that orthopedic surgeons and radiologists work closely together.” See Silvas
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v. Ghiatas, 954 S.W.2d 50, 54 (Tex. App.–San Antonio 1997, pet. denied) (concluding, in

the review of a summary judgment, that an orthopedic surgeon who has written scholarly

articles about skeletal radiology is competent to testify in a healthcare liability suit against

a radiologist). In the alternative, Trevino sought a thirty-day extension to cure any defects

that the trial court might find in Martin’s report. The trial court denied Carreras’s motion to

dismiss. This interlocutory appeal followed.

                                        II. DISCUSSION

       In a single issue, Carreras argues that the trial court erred in overruling his challenge

to the adequacy of Martin’s report on the ground that Martin did not demonstrate his

qualification to render an expert opinion in this case. Trevino responds by arguing that

interventional radiology is a surgical speciality, and therefore, Martin is qualified under

section 74.401(a)’s “training or experience” element. We disagree.

A.     Standard of Review

       We review a trial court’s determination as to the qualification of a witness as an

expert for an abuse of discretion. Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006)

(citing Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996)); Strom v. Mem’l Hermann

Hosp. Sys., 110 S.W.3d 216, 220 (Tex. App.–Houston [1st Dist.] 2003, pet. denied). A trial

court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding

rules or principles. See Lookshin v. Feldman, 127 S.W.3d 100, 103 (Tex. App.–Houston

[1st Dist.] 2003, pet. denied). We do not disturb the trial court’s discretion absent clear

abuse. Larson, 197 S.W.3d at 304 (citing Broders, 924 S.W.2d at 151).

B.     Applicable Law

       To be qualified to provide opinion testimony regarding whether a physician departed
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from the accepted standard of health care, an expert must satisfy section 74.401 of the civil

practice and remedies code. See TEX . CIV . PRAC . & REM . CODE ANN . § 74.351(r)(5)(A).

Section 74.401 provides in pertinent part:

       (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:

              (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.

       ....

       (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).      A trial court may “depart from [these] criteria if, under the

circumstances, the court determines that there is a good reason to admit the expert’s

testimony,” but, if the court does so, it must state the reason for the departure on the

record. Id. § 74.401(d).

       In addition to section 74.401, the trial court’s decision on a medical expert’s

qualification is also guided by a wealth of common-law principles. See, e.g., Philipp v.
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McCreedy, No. 04-08-00922-CV, 2009 WL 2342919, at *1 (Tex. App.–San Antonio Jul. 29,

2009, no pet. h.) (“There is no doubt that Chapter 74 has spawned a cottage industry of

expert report litigation; this court alone has addressed issues relating to preliminary expert

reports . . . multiple times within the past year.”). In Broders v. Heise, the leading case on

medical expert qualification, the supreme court held that not every licensed doctor is

automatically qualified to testify on every medical question. 924 S.W.2d at 152. The

supreme court has also held that a proffered expert need not practice in the same

speciality as the defendant physician to qualify as an expert for that case. See Roberts v.

Williamson, 111 S.W.3d 113, 122 (Tex. 2003).

       According to Roberts, the trial court’s inquiry should not focus on the specialty of the

physician defendant or medical expert. See id. Instead, as Broders holds, the trial court

should determine whether the proffered 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. Broders, 924 S.W.2d 153-54 (applying Texas

Rule of Evidence 702); Blan v. Ali, 7 S.W.3d 741, 746 (Tex. App.–Houston [14th Dist.]

1999, no pet.) (holding, in an interpretation of chapter 74’s predecessor, that the focus of

a trial court’s inquiry regarding medical expert qualifications should not be on the defendant

physician’s area of expertise, but on the condition involved in the claim). Therefore, a

medical expert from one specialty may be qualified to testify if he has practical knowledge

of what is customarily done by practitioners of a different speciality under circumstances

similar to those at issue in the case.       See Keo v. Vu, 76 S.W.3d 725, 732 (Tex.

App.–Houston [1st Dist.] 2002, pet. denied). If the subject matter is common to and

equally recognized and developed in all fields of practice, any physician familiar with the


                                              6
subject may testify as to the standard of care. Id.; Blan, 7 S.W.3d at 745 (noting that “[t]he

Texas Supreme Court has made it clear that if a subject of inquiry is substantially

developed in more than one field, a qualified expert in any of those fields may testify”).

C.     Analysis

       According to his curriculum vitae, Martin was board certified in radiology in 1980.

He has training and experience in the following “interventional procedures”:

       percutaneous angioplasty, embolizations, IVC filter placement, retrieval of
       foreign bodies, CT/US guided biopsies, percutaneous abscess drainages,
       perc. antegrade biliary drainage, dilation of biliary and ureteral
       stenosis/obstructions, perc. nephrostomies, thrombolysis, etc.

In his affidavit, Martin asserts that he has:

       . . . knowledge of the accepted standards of medical care for the diagnosis,
       prevention, care, treatment and cure of knee degeneration and the
       diagnosis, prevention, care, treatment and cure of knee replacement by
       virtue of my education, training and experiences in treating patients who
       sustained knee injuries and who had knee degeneration either due to natural
       processes such as osteoarthritis, or due to the effect of their injuries.

Carreras argues that Martin’s curriculum vitae “blatantly contradicts” his report’s assertion

that he has “knowledge” of the accepted standard of medical care for knee replacement

procedures and that Martin’s report is conclusory in its assertion of “knowledge” of the

subject matter in question. We agree.

       The specific issues raised in Trevino’s suit center on the surgical skill and post-

operative care that Carreras rendered. In order to satisfy section 74.401(c)’s medical

expert qualification requirement, and thereby constitute an adequate report, Trevino had

to demonstrate that Martin had “substantial training or experience” in total knee

replacement surgery and the post-operative care of such a procedure. See TEX . CIV. PRAC .

& REM . CODE ANN . § 74.401(c). Besides summarily asserting such “knowledge,” Martin’s
                                                7
report and curriculum vitae does not demonstrate how he gained the requisite experience

or training to satisfy the statute’s requirement. See Ehrlich v. Miles, 144 S.W.3d 620, 625-

26 (Tex. App.–Fort Worth 2004, pet. denied) (affirming, under chapter 74’s predecessor,

a trial court’s ruling that an expert report drafted by a neurologist did not demonstrate his

qualification to opine on the standard of care rendered by a plastic surgeon during a face

lift and cheek implant procedure); see also Garcia v. Rodriguez, No. 13-05-00747-CV,

2007 WL 2442349, at **3-4 (Tex. App.–Corpus Christi Aug. 30, 2007, pet. denied) (memo.

op.) (affirming, under chapter 74’s predecessor, a trial court’s ruling that an expert report

drafted by a plastic and reconstructive surgeon who stated that he had treated burn victims

did not demonstrate his qualification to opine on the standard of care rendered by a

pulmonologist to a burn victim); Miranda v. Martinez, No. 13-06-00386-CV, 2007 WL

687001, at *3 (Tex. App.–Corpus Christi Mar. 8, 2007, pet. denied) (memo. op.) (reversing

a trial court’s ruling that an expert report drafted by an obstetrician and gynecologist

demonstrated that he was qualified to opine on another OBGYN’s allegedly negligent act

of leaving a sponge in a patient after a C-section because the proffered expert “simply

inform[ed] the trial court that [he] was a doctor with a specialty in either gynecology or

obstetrics (or both) [and] did not address any of the factors that ultimately determine

whether one is a qualified expert—i.e., knowledge, skill, experience, training, and

education.”).

       We hold that Martin’s report is inadequate because it does not demonstrate that he

is qualified to render an expert medical opinion in this case and the trial court abused its

discretion by not granting Carreras’s motion to dismiss. Accordingly, Carreras’s sole issue

is sustained.


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                                              III. CONCLUSION

        We reverse the trial court’s order denying Carreras’s motion to dismiss and remand

this case to the trial court to consider whether to grant Trevino a thirty-day extension to file

an adequate expert report.1


                                                            ROGELIO VALDEZ
                                                            Chief Justice


Opinion delivered and filed this
25th day of August, 2009.




        1
         The suprem e court has held that section “74.351’s plain language perm its one thirty-day extension
when the court of appeals finds deficient a report that the trial court considered adequate.” Leland v. Brandal,
257 S.W .3d 204, 207 (Tex. 2008). Accordingly, the trial court should have an opportunity to consider granting
Trevino an extension to cure the deficiencies detailed in this opinion.
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