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MASTER OF THE UNIVERSE The Expert in Medical Malpractice Cases 2019 PAUL N. GOLD AVERSANO & GOLD

MASTER OF THE UNIVERSE The Expert in Medical Malpractice Cases 2019 PAUL N. GOLD AVERSANO & GOLD HOUSTON, TEXAS. INITIAL CONSIDERATIONS. Above all else, testifying expert must aid the jury. An expert is unneeded on matters that are common knowledge or that are common sense.

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MASTER OF THE UNIVERSE The Expert in Medical Malpractice Cases 2019 PAUL N. GOLD AVERSANO & GOLD

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  1. MASTER OF THE UNIVERSE The Expert in Medical Malpractice Cases 2019 PAUL N. GOLD AVERSANO & GOLD HOUSTON, TEXAS

  2. INITIAL CONSIDERATIONS

  3. Above all else, testifying expert must aid the jury.

  4. An expert is unneeded on matters that are common knowledge or that are common sense.

  5. Medical negligence claims require expert testimony: Standard of Care Causation

  6. The expert must be qualified to offer opinions in the area(s) on which the expert is designated.

  7. The expert’s opinions must be fact based (not conclusory), scientifically reliable, and relevant to the facts in the particular case.

  8. CATEGORIES OF EXPERTS

  9. Testifying Experts

  10. Retained Experts

  11. Consulting Only Experts

  12. Consulting Plus Experts

  13. In-House Experts In re City of Dickinson 2019 WL 638555 (Tex. 2019) In-house expert. Attorney/client privilege not waived.

  14. Dual Capacity Expert

  15. Specially Employed Expert

  16. Non-retained - Percipient Experts

  17. Parties As Experts

  18. Rebuttal Experts

  19. Medical/Psychological Adverse Examiners

  20. Ch. 74 EXPERT REPORTS

  21. Threshold requirement only.

  22. Not admissible. Shall not be used in discovery or referred to. Waiver if “used” by the claimant.

  23. Expert Qualifications

  24. Standard of Care Causation

  25. Assist the jury. “Practicing medicine.” Need not be involved in patient care. Consulting, training. Court discretion and latitude, criteria notwithstanding.

  26. Court discretion to find an exception to the criteria for practicing medicine. Deborah Hendryx and KPH-Consolidation, Inc. d/b/a Kingwood Medical Center v. Duarte 2019 WL 1065052 (Tex. App. – Beaumont 2019)| Consulting

  27. DISTINCTION Expert on Standard of Care need not be a physician. Expert on Causation must be a physician qualified to render opinions on causation.

  28. Broders v. Heise

  29. PARADOX Opinion does not need to be valid or scientifically reliable, just factually based.

  30. No Ch. 74 report requirement in federal court: Passmore v. Baylor Healthcare System (5th Cir. 2016)

  31. EXPERT DISCOVERY TOOLS

  32. Tex. R. Civ. P. 195.1

  33. Disclosure

  34. Timeliness Completeness Specific

  35. Ersek Rule

  36. Non-Retained Experts Scope of testimony defined by clinical records.

  37. Rebuttal Experts

  38. Tex. R. Civ. P. 193.6 Sanctions

  39. Death Penalty Sanctions

  40. Depositions Oral and Written Questions

  41. Reports Major difference between Texas and federal practice.

  42. What if Plaintiff does not produce reports?

  43. Adverse Examination Reports

  44. ADVERSE MEDICAL/PSYCHOLOGICAL EXAMINATIONS

  45. Leveling the playing field In re H.E.B., 492 S.W.3d 300 (Tex. 2016).

  46. SUPPLEMENTATION AND REFINEMENTS

  47. New opinions v. refinements of existing opinions

  48. Federal v. State

  49. Expert must timely supplement deposition testimony. Failure to timely supplement can result in automatic sanctions under Tex. R. Civ. P. 193.6

  50. Death Penalty Sanctions Disfavored, but available.

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