                                   NO. 07-04-0591-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL E

                                     MARCH 1, 2006

                          ______________________________


         BOBBIE ADAMS HENSARLING, Individually and as Executrix of the
       Estate of Charles
                  HENSARLING,
                         Hensarling,
                                 andCHERYL
                                     CATHERINE
                                           ANN BETH
                                               JENNINGS,
                                                    BRANSON,
                                                         KEITH RANDALL

                                                                      APPELLANTS

                                             v.

           COVENANT HEALTH SYSTEM d/b/a COVENANT MEDICAL CENTER
                             and COLLIN LANGLITZ,

                                                                      APPELLEES

                        _________________________________

              FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2002-520,034; HON. MACKEY HANCOCK, PRESIDING

                         _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1

                               MEMORANDUM OPINION

       Appellant Bobbie Adams Hensarling, individually and as executrix of the estate of

Charles Hensarling, Cheryl Ann Jennings, Keith Randall Hensarling, and Catherine Beth

Branson (collectively referred to as Hensarling) appeal from an order striking their medical


       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2005).
expert and granting summary judgment to appellees Covenant Health System d/b/a

Covenant Medical Center (Covenant) and Collin Langlitz (Langlitz) with respect to

Hensarling’s claims for health care liability. The granting of summary judgment was

premised on the fact that without the testimony of Dr. Lawson Bernstein, Hensarling could

not raise a fact issue on the causation element of the claims. Therefore, the issue before

us is whether the trial court acted properly in striking Bernstein as an expert witness

because he was not qualified to testify on the element of causation. We affirm the

judgment of the trial court.

                                   Background

       Charles Hensarling was admitted to Covenant on August 8, 2000, with a

subarachnoid hemorrhage.       Successful surgery was performed with respect to that

condition. However, Charles remained in the hospital for the next three weeks suffering

from complications such as pneumonia, respiratory failure, intermittent atrial fibrillation,

central line sepsis, deep vein thrombosis, and confusion. He was in intensive care until

September 1, at which time he was transferred to a regular room.

       Around 11:45 that evening, Charles became agitated. Langlitz, the nurse on duty,

gave him a five mg. dose of Haldol intravenously pursuant to the order of Dr. Matthew

Wills. Shortly thereafter, Charles’ oxygen saturation decreased to 60. Langlitz called Wills’

office and spoke to his nurse practitioner, who arrived at the hospital. Thereafter, Charles

was transferred back to intensive care and was intubated by Dr. Larry Warmoth. His

respiratory problems improved for a while but several hours later, his condition deteriorated

and he died around 6:30 a.m.



                                             2
       Hensarling sued the hospital, Langlitz, and Wills, alleging that Charles died as a

result of an adverse reaction to Haldol which Langlitz failed to recognize and treat.2 In

support thereof, Hensarling submitted the expert report of Bernstein. The defendants

moved to dismiss the lawsuit, alleging Bernstein was not qualified to render the opinions

he gave in his report. The trial court initially denied the motions. However, the defendants

again moved to strike Bernstein as an expert and moved for summary judgment. The trial

court granted the motion on the basis that Bernstein was not qualified to render an opinion

on causation.

                                     Standard of Review

       A witness qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion. TEX . R. EVID . 702. However, a licensed

doctor is not automatically qualified to testify as an expert on every medical question.

Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996); Cresthaven Nursing Residence v.

Freeman, 134 S.W.3d 214, 233 (Tex. App.--Amarillo 2003. no pet.). Nevertheless, an

expert may be qualified to testify even though he is not a specialist in the particular branch

of medicine for which the testimony is offered, Blan v. Ali, 7 S.W.3d 741, 745 (Tex. App.--

Houston [14th Dist.] 1999, no pet.), as long as he has sufficient familiarity with the specific

subject matter. Broders v. Heise, 924 S.W.3d at 153. Thus, the trial court must measure

the doctor’s expertise against the opinion being offered. SunBridge Healthcare Corp. v.

Penry, 160 S.W.3d 230, 237 (Tex. App.--Texarkana 2005, no pet.); Marvelli v. Alston, 100

S.W.3d 460, 474 (Tex. App.--Fort Worth 2003, pet. denied). The offering party has the



       2
           Wills was later dismissed from the lawsuit.

                                               3
burden to establish that the witness is qualified, Gammill v. Jack Williams Chevrolet, Inc.,

972 S.W.2d 713, 718 (Tex. 1998), and we review the trial court’s decision to strike the

testimony of an expert for abuse of discretion. Broders v. Heise, 924 S.W.2d at 151.

                                           Analysis

       Bernstein’s curriculum vitae represents that he maintains a practice in “[f]orensic &

[n]europsychiatric consulting . . . with expertise in the assessment and treatment of closed

head injuries, stroke, toxic environmental exposure, chronic pain conditions and other

neurological/neuropsychiatric conditions.” He testified at his deposition that he practices

“in the realm of neuropsychiatry, which is the practice of psychiatry when it’s interfaced with

neurology, internal medicine and . . . neurotoxicology.” The primary focus of his practice

is on the pharmacological management of those problems, which includes prescribing

drugs such as Haldol and the effects of those drugs. He did his residency in general

psychiatry and is board certified by the American Board of Psychiatry and Neurology in

psychiatry and by the American College of Forensic Medicine in forensic psychiatry. He

also teaches neuropsychiatry and trains neurosurgeons in identification and management

of drug and alcohol withdrawal and the identification and management of adverse

neurological sequelae from that condition, management of delirium, and informed consent

issues. The gist of his opinion on causation was that the Haldol caused a dystonic reaction,

the dystonic reaction caused respiratory distress, the respiratory distress caused a period

of hypoxia, the hypoxia produced ARDS (acute respiratory distress syndrome) and the




                                              4
ARDS caused the death of Charles. However, Dr. Warmoth, who signed the death

certificate, determined the cause of death to be a pulmonary embolism.3

          Bernstein testified that in terms of management of ARDS, he has provided

neuropsychiatric management for patients that have ARDS in the hospital but leaves the

management of the ARDS itself in the hands of specialists. He has had the opportunity to

diagnose ARDS on his own but rarely does so. Further, if he suspected that a patient had

a pulmonary embolus, he would bring it to the attention of the team of physicians he works

with but would not generally be the one to provide the treatment, although he has

diagnosed pulmonary embolus probably over a hundred times in his career. Bernstein

conceded that pulmonologists have more training than he does in matters related to the

lungs but contended that, under this unique set of circumstances, his experience and

training are equivalent to those of a pulmonologist. Generally in his practice, he is not

asked to determine the cause of death.

      General experience in a specialized field is not sufficient to qualify a witness as an

expert. Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 410 (Tex. App.--Fort Worth 2003,

no pet.). It must be shown that the doctor possesses special knowledge as to the very

matter on which he proposes to give an opinion. Keo v. Vu, 76 S.W.3d 725, 731 (Tex.

App.-- Houston [1st Dist.] 2002, pet. denied). Bernstein’s theory of causation involved a

sequential series of conditions stemming initially from a reaction to Haldol and ultimately

leading to his death. However, several steps in that sequential series involved the

development of specific pulmonary conditions which could develop without a reaction to


      3
        Without an autopsy, which the family apparently declined, this cause of death
cannot be confirmed.

                                            5
Haldol. While Bernstein had specific experience with the administration of Haldol and its

effects, the record shows he had general experience with both ARDS and pulmonary

embolus in terms of providing psychiatric assistance to patients suffering from those

problems. The trial court could have found that Bernstein did not have the specialized

knowledge necessary to establish the element of causation.

       Hensarling relies heavily on our opinion in Cresthaven Nursing Residence v.

Freeman, 134 S.W.3d 214 (Tex. App.--Amarillo 2003, no pet.) for the proposition that “the

opinions of other doctors who agree with the expert in question are relevant to evaluating

the expert’s qualifications and the reliability of his opinions.” However, we noted the cause

of death offered by other doctors in that case only for the purpose of showing that the

opinions offered did not require an expertise peculiar to the fields of cardiology or urology

in determining that the trial court did not abuse it discretion in admitting the testimony. Id.

at 234. Whether or not we might have decided the matter differently from the trial court is

not the test. The propriety of the trial court’s admission or exclusion of expert testimony is

tested against an abuse of discretion which means whether the court acted without

reference to guiding principles or rules. Daniels v. Vance, 175 S.W.3d 889, 894 (Tex. App.-

-Texarkana 2005, no pet.); Keo v. Vu, 76 S.W.3d at 730. We cannot find that it did so here.

       Without the testimony of Bernstein on causation, Hensarling has failed to produce

more than a scintilla of evidence to defeat the no-evidence motion for summary judgment.4

See Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 423 (Tex. App.--Dallas

1992, no writ). Accordingly, we must and do affirm the judgment of the trial court.


       4
       The standard of review for a no-evidence motion for summary judgment is fully
discussed in Kimber v. Sideris, 8 S.W.3d 672, 674-75 (Tex. App.--Amarillo 1999, no pet.).

                                              6
    John T. Boyd
    Senior Justice




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