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Carrillo v. Hirsch8/31/2001
Opinion by Justice Castillo
This is an appeal from a summary judgment granted in a medical malpractice suit. We reverse and remand to the trial court for a trial on the merits.
Factual Summary
On February 29, 1996, Dr. Eric Hirsch, an orthopedic surgeon, performed knee replacement surgery on Margarita Colunga, a seventy-one year-old woman. Following the surgery, Ms. Colunga developed postoperative respiratory distress. She was placed on a ventilator, and died a week later on March 7, 1996.
Paula Carrillo, as representative of Ms. Colunga's estate, brought suit against Dr. Hirsch, the hospital, and the anesthesiologist under the Medical Liability and Insurance Act of Texas. Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2001). She alleged that Dr. Hirsch violated his standard of care in deciding to proceed with surgery on Ms. Colunga, an elderly woman with an enlarged heart and a history of lung disease. She further alleged that this decision to proceed to surgery was the cause of Ms. Colunga's postoperative medical condition and subsequent death.
Dr. Hirsch moved for summary judgment with respect to his liability only on the basis that Carrillo's sole expert witness, an anesthesiologist named Dr. Laurence Rosen, was not qualified to testify as to the standard of care for Dr. Hirsch. A hearing on that summary judgment motion was held, and the trial judge struck the expert witness and granted the summary judgment that same day. Appellant's motion for new trial was timely filed, and denied. This appeal was properly perfected, and plaintiff asks that we reinstate the expert witness and reverse the summary judgment.
The Motion to Strike
In appellant's first point of error, she argues that the trial court improperly granted the motion to strike her expert witness, based on the deadline for objecting to an expert under article 4590i, §14.01(e). We deny this point of error. Under that article, the rule is that " pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the date of the witness's deposition." Tex. Rev. Civ. Stat. Ann. art. 4590i, §14.01(e) (Vernon Supp. 2001) (emphasis added).
In this case, the deposition of Dr. Rosen was taken on July 30, 1999. It is undisputed that the witness's curriculum vitae was not received by the defendant until December 3, 1999. The motion to strike the witness was made on December 14, 1999. The motion to strike was made within twenty-one days of receiving the curriculum vitae, and thus was properly heard.
In her second point of error, appellant argues that the trial court erred in granting the motion to strike based on Dr. Rosen's lack of qualifications as an expert. We grant this point of error.
We review the trial court's decision to strike an expert's testimony for abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). An abuse of discretion exists only where the trial court has acted without reference to guiding rules and principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
Appellee's motion to strike Dr. Rosen as an expert was based on the sole argument that Dr. Rosen as an anesthesiologist was unqualified to testify as to the standard of care applicable to an orthopedic surgeon. As evidence in support of this motion, appellee pointed to Dr. Rosen's own affidavit and deposition, where Dr. Rosen stated that he was not an orthopedic surgeon and had no training in the field of orthopedic surgery.
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