                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-079-CV


MALCOLM BARBER AND                                                   APPELLANTS
LEANN BARBER
                                         V.

LEO C. MERCER, JR., M.D.                                                 APPELLEE

                                     ------------

         FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

                                     ------------

                                    OPINION

                                     ------------

      Appellants Malcolm and Leann Barber sued Leo C. Mercer, Jr., M.D.,

appellee, and others for negligence in the treatment and care of Malcolm’s heart

condition during a heart bypass procedure. Dr. Mercer was the general surgeon

who assisted the lead surgeon by harvesting a saphenous vein from Malcolm’s

leg. This case currently involves only Dr. Mercer. The Barbers challenge the

trial court’s dismissal of their claim against Dr. Mercer for failure to comply with
the expert report requirements of the civil practice and remedies code. We

reverse and remand.

                      Factual and Procedural Background

      The Barbers sued numerous defendants, including Dr. Mercer, for

negligence in connection with the diagnosis and surgical treatment of Malcolm’s

heart condition (an interlocutory appeal between the Barbers and several of the

other defendants is currently pending in this court under cause number 2-07-

353-CV).    Malcolm underwent a multi-vessel coronary artery bypass graft

(CABG) procedure at United Regional Health Care System in Wichita Falls,

Texas, in early 2004.    The surgery lasted over six hours, and afterwards,

Malcolm suffered numbness, pain, and weakness in his left upper arm that led

to a diagnosis of left ulnar nerve lesion and ulnar cubital syndrome. He required

additional surgery and therapy and ultimately sued the physicians, nurse

practitioners, and the hospital involved in his care for damages resulting from

the padding and positioning of his arm. Dr. Mercer, a general surgeon, had

assisted Mikko P. Tauriainen, M.D., a cardiovascular and thoracic surgeon, in

performing the CABG procedure on Malcolm; Dr. Mercer was responsible for

harvesting the left saphenous vein from Malcolm’s leg.

      In the Barbers’ original petition they alleged multiple basis of negligence

including specifically that the various defendants negligently failed to timely,

                                       2
properly, safely, or adequately supervise or care for Malcom’s condition during

the CABG procedure and postoperatively, particularly relating to his “left upper

extremity difficulties.” Furthermore, the Barbers alleged that several of the

defendant doctors failed to adequately train or supervise others who were

assisting in Malcom’s procedure.

      After they filed suit, the Barbers timely filed their expert reports. Dr.

Mercer objected to the Barbers’ first expert report dated August 5, 2006 on the

grounds that their expert, Jeffrey Alan Wagner, M.D., M.B.A., a board certified

anesthesiologist, was not qualified to provide the report and that Dr. Wagner

failed to provide a fair summary of his opinions in accordance with section

74.351(r)(6) of the civil practice and remedies code. Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(r)(6) (Vernon Supp. 2009). After a hearing on the issue

in July 2007, the trial court specifically overruled Dr. Mercer’s objections to Dr.

Wagner’s qualifications to opine, but it sustained his objections as to the

report’s failure to provide a fair summary of the applicable standard of care,

breach of that standard as to each defendant, and causation under section

74.351.

      On September 25, 2007, the trial court entered an order giving the

Barbers thirty days to correct the defects in their first expert report as to Dr.




                                        3
Mercer.1 The order stated, “[O]bjections to the Expert Report of Jeffery Alan

Wagner, M.D. are hereby OVERRULED to the extent that such Objections

challenge Dr. Wagner’s qualifications to opine as an expert, pursuant to

Sections 74.401 and 74.402 . . . .”          However, the trial court denied the

Barbers’ oral request to supplement with a new expert as to defendants Mercer,

Robert Lee Moss, M.D., United Regional Health Care System, Inc., and Shellie

Barnett-Wright, PA-C. The Barbers immediately filed a more extensive report

by Dr. Wagner, particularly expanded as to standard of care, breach, and

causation as to each named defendant since the trial court had denied Dr.

Mercer’s objections to Dr. Wagner’s qualifications.

      After the Barbers filed their amended report through their same expert,

Dr. Wagner, Dr. Mercer filed a second motion to dismiss, which the trial court

granted on the sole ground that the expert was not qualified “to opine as an

expert against Dr. Mercer.” 2 In all other respects, the trial court determined

that the expert’s amended report, dated September 28, 2007, “satisfies the



      1
        … The trial court dismissed some of the named defendants due to the
insufficiency of the report, but the Barbers were given an opportunity to amend
their report as to Dr. Mercer and some of the other defendants.
      2
        … Although it was the same expert supplying the amended report whom
the trial court had previously found qualified, this time the trial court ruled that
the expert was not qualified to render the report and limited its ruling to Dr.
Wagner’s lack of qualifications alone.

                                         4
requirements of section 74.351 . . . as to Dr. Mercer, and all other objections

by Dr. Mercer are overruled.” The trial court then granted Dr. Mercer’s motion

to dismiss him with prejudice. The Barbers appealed. See Tex. Civ. Prac. &

Rem. Code Ann. § 51.014(a)(10) (Vernon 2008).

                                Issue on Appeal

      In the Barbers’ sole issue on appeal, they contend that the trial court

abused its discretion in granting Dr. Mercer’s second motion to dismiss on the

basis that Dr. Wagner was not a qualifying “expert” sufficient to give an opinion

on whether Dr. Mercer departed from accepted medical care under the civil

practice and remedies code.        Dr. Wagner’s complete amended report is

attached to this opinion as appendix “A.”

                              Standard of Review

      Although the Barbers ask us to reevaluate the standard of review for

expert report challenges, Texas courts and our supreme court, in particular,

agree that review of a trial court’s decision on a motion to dismiss under

section 74.351 is subject to an abuse of discretion standard. See, e.g., Am.

Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.

2001) (applying abuse of discretion standard to predecessor statute); Craig v.

Dearbonne, 259 S.W.3d 308, 310 (Tex. App.—Beaumont 2008, no pet.); San

Jacinto   Methodist   Hosp.   v.   Bennett,   256   S.W.3d    806,   811   (Tex.

                                       5
App.—Houston [14th Dist.] 2008, no pet.); Lal v. Harris Methodist Fort Worth,

230 S.W.3d 468, 471 (Tex. App.—Fort Worth 2007, no pet.).                  We have

previously declined the opportunity to apply a de novo standard of review to

this issue and therefore decline the Barbers’ invitation now.               Ctr. for

Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 291 (Tex. App.—Fort

Worth 2008, pet. denied). Furthermore, a trial court’s decision on whether a

physician is qualified to offer an expert opinion in a health care liability claim is

reviewed under an abuse of discretion standard.              See Mem’l Hermann

Healthcare Sys. v. Burrell, 230 S.W.3d 755, 757 (Tex. App.—Houston [14th

Dist.] 2007, no pet.).

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–

42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a trial

court may decide a matter within its discretion in a different manner than an

appellate court would in a similar circumstance does not demonstrate that an

abuse of discretion has occurred. Id. at 242. A trial court does not abuse its

discretion if it commits a mere error in judgment. See E.I. du Pont de Nemours

& Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

                                         6
                                 Applicable Law

      In a health care liability claim, a claimant must serve on each defendant

an expert report that addresses standard of care, liability, and causation no later

than the 120th day after the claim is filed. Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(a), (j). If an expert report has not been served on a defendant within

the 120-day period, then on the motion of the affected defendant, the trial

court must dismiss the claim with prejudice and award the defendant

reasonable attorney’s fees and costs. Id. § 74.351(b). A report “has not been

served” under the statute when it has been physically served but it is found

deficient by the trial court. Lewis v. Funderburk, 253 S.W.3d 204, 207–08

(Tex. 2008). When no report has been served because the report that was

served was found to be deficient, the trial court has discretion to grant one

thirty-day extension to allow the claimant the opportunity to cure the

deficiency. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

      A report is deficient (therefore subjecting a claim to dismissal) when it

“does not represent an objective good faith effort to comply with the definition

of an expert report” in the statute. Id. § 74.351(l). While the expert report

“need not marshal all the plaintiff’s proof,” Palacios, 46 S.W.3d at 878, it must

provide a fair summary of the expert’s opinions as to the “applicable standards

of care, the manner in which the care rendered by the physician or health care

                                        7
provider failed to meet the standards, and the causal relationship between that

failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem. Code

Ann. § 74.351(r)(6).

      To qualify as a good faith effort, the report must “discuss the standard

of care, breach, and causation with sufficient specificity to inform the

defendant of the conduct the plaintiff has called into question and to provide

a basis for the trial court to conclude that the claims have merit.” Palacios, 46

S.W.3d at 875. A report does not fulfill this requirement if it merely states the

expert’s conclusions or if it omits any of the statutory requirements. Id. at 879.

The information in the report “does not have to meet the same requirements as

the evidence offered in a summary-judgment proceeding or at trial.” Id. When

reviewing the adequacy of a report, the only information relevant to the inquiry

is the information contained within the four corners of the document alone. Id.

at 878; see Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

This requirement precludes a court from filling gaps in a report by drawing

inferences or guessing as to what the expert likely meant or intended. See

Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.—Austin 2007,

no pet.) (citing Bowie Mem’l Hosp., 79 S.W.3d at 53).

      An expert report concerning standards of care for physicians “authored

by a person who is not qualified to testify . . . cannot constitute an adequate

                                        8
report.” Moore v. Gatica, 269 S.W.3d 134, 140 (Tex. App.—Fort Worth 2008,

pet. denied); In re Windisch, 138 S.W.3d 507, 511 (Tex. App.—Amarillo 2004,

orig. proceeding); see Ehrlich v. Miles, 144 S.W.3d 620, 624–25 (Tex.

App.—Fort Worth 2004, pet. denied). To be an “expert” on the departure from

a physician’s standard of care (therefore qualifying the submission of an expert

report), a person must be 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.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(5)(A), § 74.401(a) (Vernon

2005). In determining the third element of this standard, courts must consider

whether the physician who completed the report (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(c). In other words,

      there is no validity, if there ever was, to the notion that every
      licensed medical doctor should be automatically qualified to testify
      as an expert on every medical question. . . . [T]he proponent of
      the testimony has the burden to show that the expert possesses



                                       9
         special knowledge as to the very matter on which he proposes to
         give an opinion.

Ehrlich, 144 S.W.3d at 625 (quoting Broders v. Heise, 924 S.W.2d 148,

152–53 (Tex. 1996)).       For this reason, the offered report (along with the

physician’s curriculum vitae (CV)) must generally demonstrate 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.” Id. at 625 (quoting Roberts v. Williamson, 111 S.W.3d

113, 121 (Tex. 2003)).

         However, “there are certain standards of medical care that apply to

multiple schools of practice and any medical doctor.” See Blan v. Ali, 7 S.W.3d

741, 746 (Tex. App.—Houston [14th Dist.] 1999, no pet.).           Therefore, a

physician “who is not of the same school of medicine [as the defendant] . . . is

competent to testify if he has practical knowledge of what is usually and

customarily done by a practitioner under circumstances similar to those

confronting the defendant.” Ehrlich, 144 S.W.3d at 625; see also Marling v.

Maillard, 826 S.W.2d 735, 740 (Tex. App.—Houston [14th Dist.] 1992, no

writ).




                                       10
                                   Analysis

Whether Law of the Case Applies

      After the next hearing on the adequacy of Dr. Wagner’s amended report,

this time the trial court determined that Dr. Wagner, a board certified

anesthesiologist, was not qualified to give an opinion on Dr. Mercer’s care but

that all of Dr. Mercer’s other objections to Dr. Wagner’s report were overruled

and that in all other respects the report had met the requirements of a section

74.351 expert report. Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Because

the only basis for the trial court’s dismissal of the Barbers’ claim against Dr.

Mercer was based on its new determination that Dr. Wagner “fails to meet the

qualifications to opine as an expert against Dr. Mercer,” we too will focus on

this ground.

      Importantly, the trial court’s initial order regarding Dr. Wagner’s first

report as to Dr. Mercer specifically overruled the defense objections to Dr.

Wagner’s qualifications to opine regarding Dr. Mercer’s alleged negligence.

Therefore, we must first decide the impact, if any, of the trial court’s prior

ruling that actually approved Dr. Wagner’s qualifications and found his report

lacking only on standard of care, breach, and causation.

      Generally, once an issue has been litigated, that issue may not be

relitigated. See generally Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. John

                                      11
Zink Co., 972 S.W.2d 839, 845–46 (Tex. App.—Corpus Christi 1998, pet.

denied). And, in this particular case, Dr. Mercer filed an interlocutory appeal to

this court challenging the trial court’s denial of his objections to Dr. Wagner’s

qualifications and its alleged denial of his motion to dismiss based upon Dr.

Wagner’s qualifications. This court dismissed that appeal in a memorandum

opinion for lack of jurisdiction to consider an interlocutory appeal of a trial

court’s failure to rule on a dismissal motion based on the inadequacy of an

expert report and its grant of an extension of time to cure.       See Barber v.

Barber, No. 02-07-00353-CV, 2007 WL 4461411, at *1 (Tex. App.—Fort

Worth Dec. 20, 2007, no pet.) (mem. op.). In doing so, we noted that the trial

court had not ruled on Dr. Mercer’s first motion to dismiss. Id. Dr. Mercer had

tried to appeal “only the denial of his objections and motion to dismiss based

on [Dr. Wagner’s] lack of qualifications to opine against Dr. Mercer.” Id.

      At the hearing on the sufficiency of the amended report, the Barbers

argued that Dr. Mercer had waived his current right to challenge the expert

report because this, in essence, gave him two attempts to appeal. The unique

posture of this case, however, is that our court dismissed the first interlocutory

appeal for want of jurisdiction. Thus, there really has been no review of the

trial court’s initial overruling of Dr. Mercer’s objection to Dr. Wagner’s

qualifications while at the same time sustaining Dr. Mercer’s objections to the

                                       12
report for failure to adequately set forth the standards of care, breach, and

causation. In other words, the Barbers modified their first report to address the

defects specifically enumerated by the trial court—those that went to the

adequacy of the report regarding standard of care, breach, and causation—as

opposed to the qualifications of their expert. They made virtually no changes

to the initial report regarding Dr. Wagner’s qualifications because the trial court

had already overruled Dr. Mercer’s objections to Dr. Wagner’s qualifications.

However, the law of the case doctrine is limited to questions of law determined

by a court of last resort.    See generally City of Houston v. Jackson, 192

S.W.3d 764, 769 (Tex. 2006); Briscoe v. Goodmark Corp., 102 S.W.3d 714,

716 (Tex. 2003); Truck Ins. Exch. v. Robertson, 89 S.W.3d 261, 264 (Tex.

App.—Fort Worth 2002, no pet.). Thus, we will consider Dr. Wagner’s

qualifications to opine in this appeal.3




      3
       … We note some disparity with this determination: if the trial court had
originally determined that Dr. Wagner was both unqualified to opine and that
the report was inadequate, the Barbers likely would have modified their
explanations of their expert’s qualifications. Now, however, they have
apparently used up their one-time extension, and the trial court has totally
changed its mind regarding their expert’s qualifications. Thus, the Barbers have
been denied an opportunity to amend this aspect of their report even once. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

                                           13
Qualifications to Opine

      “[A] physician ‘who is not of the same school of medicine [as the

defendant] is competent to testify if he has practical knowledge of what is

usually and customarily done by a practitioner under circumstances similar to

those confronting the defendant.’” Gatica, 269 S.W.3d at 141 (citing Ehrlich,

144 S.W.3d at 625). In other words, such a physician may not be practicing

in the “exact same field as the defendant physician, but instead must . . . be

actively practicing medicine in rendering medical care services relevant to the

claim.” Kelly v. Rendon, 255 S.W.3d 665, 674 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). According to the Texas Rules of Evidence, which also

provide guidance, we may look to “whether the offering party has established

that the expert has knowledge, skill, experience, training, or education regarding

the specific issue before the court.” Gelman v. Cuellar, 268 S.W.3d 123, 128

(Tex. App.—Corpus Christi 2008, pet. denied) (citing Tex. R. Evid. 702;

Roberts, 111 S.W.3d at 121). Furthermore, the court must ensure that the

experts have expertise concerning the actual subject about which they offer

opinions.   Reed v. Granbury Hosp. Corp., 117 S.W.3d 404, 410 (Tex.

App.—Fort Worth 2003, no pet.).

      Dr. Mercer’s specific objections to Dr. Wagner’s qualifications as set forth

in his amended report and CV are based upon the allegation that Dr. Wagner is

                                       14
unqualified to testify on the particular subject matter as required by sections

74.401(a) and 74.403(a) of the civil practice and remedies code. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 74.401(a), 74.403(a) (Vernon 2005).

      In the trial court, Dr. Mercer objected to the fact that Dr. Wagner is an

anesthesiologist as opposed to a general surgeon—as is Dr. Mercer—and simply

stated that because Dr. Wagner is an anesthesiologist whereas Dr. Mercer is a

board certified general surgeon and the case involved a surgical procedure, the

Barbers failed to establish Dr. Wagner’s qualifications with regard to the care

provided by Dr. Mercer.     Merely referencing paragraphs in Dr. Wagner’s

amended report however, without providing some analysis as to why they are

insufficient, is not enough. See Tex. R. App. P. 33.1(a)(1)(A) (requiring party

to object with sufficient specificity to make trial court aware of particular

complaint); Maris v. Hendricks, 262 S.W.3d 379, 384–85 (Tex. App.—Fort

Worth 2008, pet. denied) (holding that objections to adequacy of timely filed

report are subject to preservation rules); see also Gatica, 269 S.W.3d at 141

(reiterating that physician of another specialty may be competent to testify

about standard of care if he or she has knowledge of what is usually and

customarily done by a practitioner under similar circumstances). Dr. Mercer did,

however, continue with his objections, which he also raises on appeal.




                                      15
      Dr. Mercer challenges Dr. Wagner’s CV, which admittedly does not show

that he is a general surgeon but a board certified anesthesiologist, a fact already

established. Dr. Mercer instead complains that Dr. Wagner’s CV fails to show

how Dr. Wagner has gained any “knowledge, training, or experience that would

qualify him to opine on the standard of care of a general surgeon harvesting a

vein.” While it is true that Dr. Wagner’s CV might not reveal such information

when read in isolation, we are allowed, if not instructed, to consider the four

corners of the report along with the CV when evaluating the expert’s

qualifications to opine on a particular subject. Palacios, 46 S.W.3d at 878;

Hansen v. Starr, 123 S.W.3d 13, 20 (Tex. App.—Dallas 2003, pet. denied).

Because we do not view Dr. Wagner’s CV in isolation, this objection alone is

an insufficient basis for the trial court’s determination on Dr. Wagner’s

qualifications.

      While Dr. Mercer then acknowledges that Dr. Wagner’s amended report

shows that he has “administered and managed medical anesthesia care and

treatment to over 10,000 patients undergoing surgeries in a supine position,

and . . . between 300 and 400 patients undergoing cardiac surgery,” Dr.

Mercer contends this experience is insufficient because it “does not establish

how he could legitimately be qualified by training or experience to opine as to

the scope of Dr. Mercer’s duties and responsibilities as a general surgeon

                                        16
harvesting a vein, or what Dr. Mercer should have known as a general surgeon

harvesting a vein.”   However, excerpts from Dr. Wagner’s amended report

show otherwise.     For example, in paragraph six, Dr. Wagner states, “I am

familiar and experienced in . . . proper patient positioning to prevent peripheral

neuropathies in the upper . . . extremities of patients . . . including cardiac

surgical procedures.” Dr. Wagner additionally says in paragraph seven,

            I have substantial personal knowledge and experience in the
      medical diagnosis, care, and treatment of adult patients undergoing
      general anesthesia for cardiac surgical procedures, and I am familiar
      with the management of such procedures, including the positioning
      and padding of the patient and the patient’s extremities in the
      prevention of perioperative peripheral neuropathies under
      circumstances like or similar to Malcolm Barber[‘s]. . . . I am
      familiar with the management of such procedures, including the
      positioning and padding of the patient. . . .          My medical
      management of adult patients undergoing general anesthesia for
      cardiac surgical procedures, and familiarity with the management
      of such procedures, including the positioning and padding of the
      patient . . . has included approximately 300 to 400 patients.

And in paragraph eight, Dr. Wagner further states,

            I also have substantial knowledge of the causal relationship
      between an anesthesiologist’s [and] general and traumatic
      surgeon’s . . . failures to meet the reasonable, prudent and
      accepted standards of medical [and] health . . . care and
      supervision in the diagnosis, care and treatment of patients
      undergoing general anesthesia for cardiac surgical procedures, . . .
      including the positioning and padding of the patient and the
      patient’s extremities in the prevention of perioperative peripheral
      neuropathies under circumstances like or similar to Malcolm
      Barber[‘s] as of 2004. . . . Furthermore, I have substantial
      knowledge of the effectiveness or potential effectiveness of such

                                       17
      standards of medical [and] health . . . care for . . . general and
      traumatic surgeons . . . in the diagnosis, care, and treatment of
      patients undergoing general anesthesia for cardiac surgical
      procedures in the positioning and padding of surgical patients’
      extremities, and I am familiar with the management of the
      positioning and padding of the patient . . . .


And, finally in paragraph nine, Dr. Wagner says,

              I have substantial knowledge of reasonable, prudent, and
      accepted standards of medical, health, nursing, and physician’s
      assistant care applicable to anesthesiologists, [and] general and
      traumatic surgeons, . . . for the care and positioning and padding
      of the patient and the patient’s extremities . . . . My knowledge of
      such standards of medical, nursing and physician’s assistant care
      is based upon my above-described education, training and
      experience, my familiarity with the applicable medical literature, my
      familiarity with the applicable standards of medical and health care
      . . . that were applicable to all general and traumatic surgeons . . . .
       [Emphasis added.]

      There is a repeating theme to Dr. Wagner’s qualifications; he continually

ties his education and training not only to his knowledge of anesthesia care

during a cardiac procedure, but also to the medical and health standards of care

for general surgeons like Dr. Mercer, who perform cardiac procedures that

involve positioning and padding of a patient. He clearly identifies that he has

acquired training and experience in studying, learning, and observing the

appropriate standards for general surgeons with regard to their obligations for

the positioning and padding of their medical patients. See Tex. Civ. Prac. &

Rem. Code Ann. § 74.401(a)(3).

                                        18
      In this case, it is also important to note that the alleged medical

negligence does not relate to a particular failure regarding the cardiac or general

surgeons’ performance of the actual operating techniques. Here, the alleged

breach relates specifically to the padding and positioning of the patient and his

extremities during the procedure. The padding and positioning of a patient

during surgery is common to surgeries generally, and Dr. Wagner quite clearly

and repeatedly makes clear that he has knowledge, training, and experience

regarding the medical and surgical management duties of the general surgeon

during surgical procedures.4

      For all the foregoing reasons, we believe that the trial court’s initial ruling

denying Dr. Mercer’s objections to Dr. Wagner’s qualifications was correct. We

therefore conclude that the Barbers’ expert, Dr. Wagner, is qualified to render

an opinion under section 74.401(a) and (c), as well as section 74.403, as to a

general surgeon’s duty regarding the proper positioning and padding of a

cardiac surgical patient.   Tex. Civ. Prac. & Rem. Code §§ 74.401(a), (c),

74.403(a).    We therefore also determine that the trial court abused its



      4
       … Although Dr. Mercer notes allegations against him that go beyond the
positioning and padding of the extremities in a surgical procedure and requests
that we affirm the dismissal as to those allegations, it is quite clear that the
Barbers’ complaints regarding Dr. Mercer in the appeal relate only to his failure
to manage the positioning and padding of a patient’s extremities as shown by
their concession in their reply brief.

                                        19
discretion in sustaining Dr. Mercer’s objections to the qualifications of the

Barbers’ expert upon the filing of their amended report.     We sustain the

Barbers’ sole issue and reverse and remand this case to the trial court for

further proceedings.




                                               TERRIE LIVINGSTON
                                               JUSTICE




PANEL: CAYCE, C.J.; LIVINGSTON and MEIER, JJ.

CAYCE, C.J. concurs without opinion.

DELIVERED: October 15, 2009




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