EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, October 19, 2011

Gross Out, Take 2: Texas Also Allows Experts To Testify About Defendant Doctors' Gross Negligence

In a post a couple of days ago, I noted that expert testimony that Dr. Conrad Murray acted with "gross negligence" was likely proper under California law even though it would be improper under the law of many (most?) other jurisdictions. After some further, research, I uncovered a Supreme Court of Texas opinion revealing that the such testimony would also be admissible under Texas law.

In Hall v. Birchfield, 718 S.W.2d 313 (Tex.App.-Texarkana 1986),

Kellie Birchfield was born on August 14, 1974, at Wadley Hospital in Texarkana to parents, Phillip J. Birchfield and Mary Jo Birchfield. The infant was two to three months premature and weighed two pounds, seven ounces. She was born with a congenitally small and functionless right eye. She was treated in the hospital nursery from the date of her birth until her discharge on November 14, 1974. Shortly afterwards, she was seen by an ophthalmologist, who diagnosed a RLF [retrolental fibroplasia] condition in her left eye. The condition...caused total loss of sight in her left eye. Scientific studies dating from the 1940's and 1950's suggest[ed] that a causal relationship exists between the administration of high levels of oxygen to premature infants and the occurrence of RLF.

In the Birchfields' action for medical malpractice against the treating physicians and the hospital, they presented expert testimony that the physicians acted with gross negligence, and the jury ultimately found for the plaintiffs. The Court of Appeals of Texas, Texarkana, later found on appeal that this testimony was properly admitted, concluding that

Tex.R.Evid, 704 permits testimony in the form of an opinion or inference otherwise admissible even though it embraces an ultimate issue to be decided by the trier of fact. This rule did not change the existing state of evidence law in Texas. Prior to codification of the Texas Rules of Evidence, Texas did not exclude opinions on the basis that they embraced an ultimate issue or invaded the province of the jury....However, the new rule did not open the door to matters which contain opinions as to points of law or questions of mixed fact and law. What constitutes negligence or malpractice on the part of a physician is a mixed question of law and fact that can only be determined by the trier of fact on basis of evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion on what constitutes negligence or malpractice on the part of a physician....An expert witness can give information about standards of medical practice but should not express an opinion as to the conduct that might be expected of a hypothetical doctor similarly situated.

On appeal, however, the Supreme Court of Texas disagreed in Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361 (Tex. 1987), concluding that

The Birchfields' expert witness testified on direct examination that Wadley's conduct constituted “negligence,” “gross negligence,” and “heedless and reckless conduct,” and that certain acts were “proximate causes” of Kellie's blindness. Contrary to the holding of the court of appeals, such testimony is admissible. TEX.R.EVID. 704. Fairness and efficiency dictate that an expert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.
In Smogor v. Enke, 874 F.2d 295 (5th Cir. 1989), however, the Fifth Circuit found that a district court did not abuse its discretion in applying Federal Rule of Evidence 704 to exclude expert testimony that a doctor acted with "gross negligence" despite the plaintiffs' citation to Birchfield.  



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