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Shewbirt v. Prudich11/30/1995
Doyal Ray Shewbirt, Jr. appeals a judgement entered following a directed verdict in favor of John Prudich, M.D. In two points of error, Shewbirt contends the trial judge erred in granting Dr. Prudich's motions to (1) disqualify Shewbirt's expert witness and (2) direct a verdict. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 15, 1991, Shewbirt injured his right knee while at work. A local doctor examined him and referred him to Dr. Prudich. After examining Shewbirt's knee, Dr. Prudich recommended surgery. Dr. Prudich later performed an arthroscopically-assisted anterior cruciate ligament (ACL) reconstruction on the injured knee.
Shewbirt subsequently sued Dr. Prudich for malpractice, alleging that the surgery was unnecessary and had resulted in further injury to Shewbirt's knee. On October 10, 1994, the parties appeared in court and announced ready for trial. After a jury was impaneled, Dr. Prudich moved to disqualify Shewbirt's sole expert witness, Dr. George Sibley, on the ground that Dr. Sibley did not meet the requirements of article 4590i, section 14.01 of the revised civil statutes. See Tex. Rev. Civ. Stat. Ann. art. 4590i, Section(s) 14.01 (Vernon Supp. Pamph. 1995). After hearing the argument of counsel as well as Dr. Sibley's testimony, the trial judge granted the motion to disqualify. Dr. Prudich then moved for a directed verdict which the trial judge also granted. This appeal followed.
MOTION TO DISQUALIFY EXPERT WITNESS
In his first point of error, Shewbirt contends the trial judge erred in granting Dr. Prudich's motion to disqualify Dr. Sibley. Shewbirt claims the trial judge abused her discretion in excluding Dr. Sibley's testimony because the doctor was "practicing medicine" as that phrase is defined in article 4590i of the revised civil statutes. See Tex. Rev. Civ. Stat. Ann. art. 4590i, Section(s) 14.01 (Vernon Supp. Pamph. 1995). Because Dr. Sibley was "practicing medicine," Shewbirt contends Dr. Sibley was competent to testify and that his testimony should not have been excluded. We disagree.
We review the trial judge's decision to admit or exclude evidence under the abuse of discretion standard. Milkie v. Metni, 658 S.W.2d 678, 679 (Tex. App. -- Dallas 1983, no writ). We do not disturb the trial judge's ruling absent a clear abuse of discretion. North Dallas Diagnostic Center v. Dewberry, 900 S.W.2d 90, 93 (Tex. App. --Dallas 1995, writ denied). A trial judge abuses her discretion when she acts arbitrarily or unreasonably, or without any reference to guiding rules and principles. E.I. du Pont de Nemours & Co. v. Robinson, 38 Tex. Sup. Ct. J. 852, 860 (June 15, 1995).
Article 4590i, section 14.01 of the revised civil statutes outlines the requirements for admitting an expert witness's testimony on the standard of care in a medical malpractice case. Tex. Rev. Civ. Stat. Ann. art. 4590i, Section(s) 14.01 (Vernon Supp. Pamph. 1995). Under the statute, a person is qualified as an expert witness if "the person is practicing at the time such testimony is given or was practicing at the time the claim arose and has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim." Tex. Rev. Civ. Stat. Ann. art. 4590i, 14.01(a)(1) (Vernon Supp. Pamph. 1995). The statute defines "practicing" as including but not limited to "training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians." Tex. Rev. Civ. Stat. Ann. art. 4590i, Section(s) 14.01(b)
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