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SOUTHEAST TEXAS RECORD

Thursday, March 28, 2024

Texas Appeals Court upholds validity of medical expert in patient injury

Lawsuits
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HOUSTON - A Texas court of appeal has upheld a trial court decision in a health care lawsuit where a patient suffered injuries while trying to use crutches. 

The 14th Court of Appeals decision issued on Aug. 23 indicated that the lower court was correct in its acceptance of plaintiff Maria Olvera’s expert, despite the objections of the defendant, Dr. Darnell Pettway. 

Pettway appealed the trial court decision claiming that the expert Olvera brought forward did not offer a “sufficient opinion” on two fronts; one that the expert, Dr. Charles Xeller was not qualified to give an opinion on the standard of care and that Dr. Xeller failed to define a standard of care. 


However, the appeal court justices disagreed. 

“Xeller’s report demonstrates his knowledge, skill, experience, and training regarding the specific issue before the court—the standard of care owed to a patient who is using crutches. The trial court acted within its discretion to conclude that Xeller is qualified,” Justice Ken Wise wrote in the court decision

“The trial court did not abuse its discretion by concluding that Xeller’s report satisfied the ‘good-faith effort’ requirement because the report informs Pettway of the specific conduct called into question,” Justice Wise stated. 

“Even if further litigation might show that Pettway is not liable because Xeller’s causation opinion is wrong, the only question presented at this stage in the case is whether the report provides enough information for the trial court to conclude that the report was a good-faith effort,” the court decision noted. 

“We conclude that the report contained sufficient information, so the trial court acted within its discretion.”

The lawsuit began after Olvera sprained her ankle and had the ankle wrapped and was prescribed crutches by Pettway. Not knowing how to use the crutches, Olvera fell on concrete and hurt her head, shoulder and neck. She had a concussion and also had surgery on her shoulder. 

“Xeller states in his report that he orders crutches for patients with injuries similar to Olvera’s and trains them on the proper use in a safe environment. He identifies his specific training for instructing patients on the proper manner and way in which to walk and use crutches, supervising and ensuring that proper fall prevention precautions were in place, and observing patients with crutches, which included staying in close proximity to patients to prevent falls,” the appeals court decision stated. 

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