The Underlying Facts
When Jackson was seven years old, his pediatrician noticed that his left eye looked outward. The pediatrician referred Jackson to Dr. Gunderson, an ophthalmologist. Jackson visited Dr. Gunderson twice and, at his second appointment, Jackson was scheduled for strabismus surgery on both of his eyes. The surgery was completed in February 2017.
In October 2017, Jackson visited his pediatrician twice complaining of headaches and vomiting. Jackson was taken to the emergency room on October 15, 2017, and a CT scan showed a left occipital tumor in his brain. The tumor was surgically removed and pathology testing showed that it was a ganglioglioma, a slow-growing tumor. Post-surgery, Jackson lost approximately one-quarter of his visual field in each eye.
Jackson’s parent sued the ophthalmologist and others, asserting that the defendants negligently failed to diagnose and treat Jackson’s condition. The plaintiff served the defendants with Dr. Todd Allen Lefkowitz’s expert report and curriculum vitae pursuant to section 74.351 of the Texas Medical Liability Act.
Dr. Lefkowitz currently practices as an ophthalmologist and has experience performing eye surgeries, including strabismus surgery. In his expert report, Dr. Lefkowitz opined that Dr. Gunderson violated the applicable standard of care by failing to perform a complete examination of Jackson’s eyes, which would have included dilation of both pupils and a complete fundal exam. According to Dr. Lefkowitz, if Dr. Gunderson had performed these examinations the tumor would have been discovered sooner and removed while it was small enough to avoid damaging Jackson’s vision.
The defendants objected to Dr. Lefkowitz’s report, arguing that Dr. Lefkowitz was not qualified and that his opinion on causation was speculative and conclusory. Based on these objections, the defendants requested that the trial court dismiss the plaintiff’s Texas medical malpractice claims. In an order signed November 5, 2020, the trial court overruled the defendants’ objections to Dr. Lefkowitz’s report and denied their motion to dismiss. The defendants then filed an interlocutory appeal.
Texas Appellate Court Opinion
Under the Texas Rules of Evidence, an expert witness may be qualified on the basis of knowledge, skill, experience, training, or education to testify on scientific, technical, or other specialized subjects if the testimony would “assist the trier of fact” in understanding the evidence or determining a fact issue. Tex. R. Evid. 702. A physician need not practice in the particular medical field about which they are testifying so long as they can demonstrate that they have knowledge, skill, experience, training, or education about the specific issue before the court that would qualify them to give an opinion on that subject.
The Texas Appellate Court held: “Here, the trial court did not abuse its discretion by concluding that Dr. Lefkowitz is qualified to opine regarding the causal relationship at issue in this case,” explaining, “Based on Dr. Lefkowitz’s education and experience in the field of ophthalmology, the trial court reasonably could have determined that he was qualified to opine on the specific issue before the court, i.e., the causal link between Dr. Gunderson’s alleged failure to perform certain eye examinations and the delayed discovery of Jackson’s ganglioglioma. The central allegations underlying Appellees’ suit relate to whether an ophthalmologist departed from the standards of care applicable to eye examinations and a subsequent eye surgery; the record shows that Dr. Lefkowitz has significant education and experience in both areas. Moreover, Dr. Lefkowitz has treated patients like Jackson that presented with the same conditions. Therefore, the trial court did not abuse its discretion in concluding that Dr. Lefkowitz is qualified to opine on the causal relationship between the alleged negligence and Jackson’s subsequent injuries and harm.”
Source Gunderson v. Wade, No. 14-20-00795-CV.
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