Case of the Day: Benge v. Williams, 2018 Tex. LEXIS 441 (Tex. May 25, 2018)

Summary:

In a medical malpractice case involving a botched hysterectomy surgery, the plaintiff patient prevailed in the lower courts. In the appeal, the defendant-appellant argued that the plaintiff-appellee's expert witness was not qualified to give testimony because he was not "practicing medicine." The expert was a board certified obstetrician and gynecologist who later also attended and graduated from law school, and began a teaching career in Texas by teaching law at the University of Houston Law Center and medicine at Baylor College of Medicine. In 2011, the expert moved to South Korea to teach law and medicine at Yonsei University, while continuing to collaborate with a Baylor professor.

The court rejected the argument that the expert was not "practicing medicine" because he was not accredited to see patients in South Korea, and also rejected the argument that Yonsei University Medical School was not an accredited institution because the school was not accredited in accordance with U.S. standards.

Takeaway:

It is of course the litigant's prerogative to make this type of hyper technical argument, but the argument needs to pass the laugh test. It is an impossibly heavy lift to claim that a person with a credential like the expert described here, going from teaching at one elite hospital after another, was not "practicing medicine," even though the legal battle may be over a term of art.