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TX: nursing home brings mandamus v. Judge: were decubitius ulcers 'cause' of pt.'s death?

CASE FACTS: Tom Lincoln was a resident of Highland Pines Nursing Home and Rehabilitation Center (Highland Pines). While there, decubitus ulcers were allowed to develop or, alternatively, worsen. After the patient died his family brought suit against Highland Pines alleging that the patient's' ulcers were allowed to worsen and that this condition contributed to his death. The plaintiffs alleged that the patient's injuries and death were proximately caused by Highland Pines negligence. To support these allegations the plaintiffs filed an expert report and curriculum vitae submitted to Mildred Hogstel, Ph.D., RN and C. Gerontological Nursing Consultant. Highland Pines filed a motion to dismiss asserting that Nurse Hogstel's report did not meet the statutory definition of an "expert report" and arguing that therefore the underlying lawsuit had to be dismissed. Highland Pine's motion was denied. Highland Pines filed a petition for mandamus.

COURT'S OPINION: The Court of Appeals of Texas conditionally granted Highland Pines' petition for mandamus. The court held, inter alia, that expert report filed failed to meet the statutory definition of an expert report and therefore the plaintiffs failed to meet their burden of proof. In a medical negligence suit, the proximate causation element must generally be proved by expert medical testimony. In a medical malpractice suit, the proximate causation element must generally be proved by expert medical testimony. Nurses can certainly qualify as medical experts. Therefore a nurse, through specialized experience or training, might be very qualified to testify about medical causation. The qualification of a witness to offer expert testimony is a matter committed to the trial court's discretion. The burden of establishing an expert's credentials is on the offering party. The plaintiffs were required to establish that Nurse Hogstel was qualified to testify about whether Highlands Park proximately caused the patient's injuries as well as his death. Despite Nurse Hogstel's outstanding credentials the court concluded that this showed she was eminently qualified to testify as to "nursing negligence," the applicable standard of care and the cause of the patient's decubitus ulcers. However, her qualifications as an expert cannot imply that Nurse Hogstell, was qualified as an expert witness to testify as to "the cause of the patient's death." The court agreed that the lower court had abused its discretion in denying Highland Park's motion to dismiss. The court concluded that the court erred in failing to grant the defendant's motion. This case illustrates that cases can be lost for failure to have the right expert testify on the right topic at the right time. 2004WL 503411 S.W. 3d -TX
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Title Annotation:Legal Case Briefs for Nurses
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:Apr 1, 2004
Previous Article:TX: Dr.'s expert opinion medical report deficient: suit v. Visiting Nurses over negligent infusion fails.
Next Article:Student nurse punctured sciatic nerve: was hospital liable? Case on point: Lovett v. Lorain Community Hospital, 2004 WL239927 N.E.2d -OH.

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