First District court upholds ruling that expert witness in health care liability case is qualified

By Tomas Kassahun | Mar 19, 2018

HOUSTON – The Court of Appeals for the 1st District of Texas has upheld a Fort Bend County court's denial of a motion to dismiss a health care liability claim after the appellant argued the appellees' expert was not qualified.

The appellate court upheld the trial court's ruling March 1, agreeing that the expert was qualified.

According to the appeals court opinion, appellant Dr. Arturo Armenta performed reconstructive surgery on Isonetta Jones, then performed emergency surgery a day later to restore blood circulation.

When Jones’ oxygen level dropped to 85 percent, Armenta stayed in the operating room until Jones was extubated and taken to the intensive care unit, the appeals court said.

“... She suffered brain damage from prolonged deprivation of oxygen,” the court said. “Based on medical advice that Jones would not recover from her brain injury, mechanical life support was withdrawn, and she passed away.”

Alleging that Jones had the tubes removed despite shallow breathing, Jones’ estate, her husband and her children filed a lawsuit. The hospital, three anesthesia practices, Armenta and Gary Flores, the anesthesiologist who provided care during the emergency surgery, were named in the suit.

Dr. William James Mazzei, a licensed board-certified anesthesiologist in California, gave an expert report to the court. The report stated that Flores and a nurse anesthetist violated the standard of care when they removed the tube before Jones could breathe on her own, the appeals court said.

The report added that the health professionals’ alleged failure to “immediately ventilate the patient” was the reason for Jones’ breathing difficulty and brain damage.

Armenta argued against the report but the trial court rejected his motion to dismiss, the appeals court said.

Armenta’s first argument, as described by the appeals court, is that Mazzei’s credentials as an anesthesiologist do not qualify him to give expert opinion about plastic surgery.

Armenta also argued the report didn’t prove “breach of the standard of care and causation,” the appeals court said.

In regards to proving Mazzei’s qualification as an expert, the court said it looked at three criteria. First, the court said the expert witness must be a physician who is practicing medicine during the time the testimony is given.

Second, the physician must have "knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim,” the opinion stated.

Additionally, the court said the expert witness “is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care,” the opinion stated

Mazzei was giving anesthesia to patients who were in a similar situation as Jones during the time of Jones’ surgery, the appeals court said.

The court cited Mazzei’s report, which said his services included “consulting with the surgeon, evaluating the patient and providing anesthesia care to the patient which includes, but is not limited to, intubating the patient, providing anesthesia during surgery, monitoring the patient post-operatively and extubating the patient.” 

Armenta argued Mazzei was not qualified to give his opinion about the standards that apply “after the plastic surgeon has successfully completed plastic surgery and the anesthesiologist and certified nurse anesthetist are caring for that same patient after surgery.”

After analyzing the report and reviewing Mazzei’s background, the court said Mazzei’s expertise applies to this case.

“We conclude that the trial court did not abuse its discretion by ruling that Dr. Mazzei was qualified to offer his opinions in the form of an expert report in this case,” the appeals court said.

In his argument against the alleged breach of the standard of care, Armenta said he’s not liable because “intubation, ventilation and extubation were exclusively the responsibility of the anesthesiologist.”

The appeals court said Mazzei’s report was adequate in describing why Armenta is potentially liable and the trial court was right in “denying the motion to dismiss based on the statements of standard of care and breach.”

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