Larson v. Downing

In determining whether a person is qualified by training and experience to testify as an expert in a case involving a health care liability claim, the court is required by statute to consider, among other things, "whether, at the time the claim arose or at the time the testimony is given, the witness . . . is actively practicing medicine in rendering medical care services relevant to the claim." The trial court in this medical malpractice case excluded the plaintiffs expert because it had been fifteen years since he had performed surgery like that performed by the defendant. A divided court of appeals reversed. 153 S.W.3d 248 (Tex. App.-Beaumont 2004). We conclude that the trial court did not abuse its discretion. Petitioner, Dr. Mark Larson, operated on respondent, Mary Martha Downing, on July 14 and August 6, 1998, to repair a left orbital blow-out fracture which had entrapped a muscle in her left eye. She sued Larson, alleging that because of his negligence she required a third surgery to release the entrapped muscle. She filed an expert report by Dr. Martin L. Bell (who is also a lawyer), her only expert, who was deposed in March 2002. Larson then moved for summary judgment, asserting that Bells testimony should be excluded because he was not qualified as an expert, and that without his testimony Downing had no evidence to support her claims. Specifically, Larson argued that Bell was not qualified because he had admitted that at the time of his deposition it had been fifteen years since he had treated an orbital blow-out fracture, and that while he had used silicone implants with a dacron mesh manufactured by Dow Corning, he had never used a titanium mesh implant manufactured by Synthes as Larson had done. Downing responded that Bell had been a practicing physician since 1975, that he was licensed in four states (Louisiana, Massachusetts, California, and Arizona) and one foreign country (the Netherlands), that he was board certified in surgery, plastic and reconstructive surgery, and cosmetic surgery, that he had been chief of plastic surgery at two medical centers, that he had been an assistant clinical professor in plastic surgery at Tulane University and had taught there until about a year before Downings surgery, and that he continued to practice in Arizona. Bell explained why he had not repaired an orbital blow-out fracture in fifteen years: