1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by as signmen t.

Tex. Gov ’t Code A nn. §75.0 02(a)(1) (Vernon S upp. 200 5). NO. 07-04-0591-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E MARCH 1, 2006

______________________________ BOBBIE ADAMS HENSARLING, Individually and as Executrix of the Estate of Charles Hensarling, CHERYL ANN JNNINGS, KEITH RANDALL

HENSAR LING, and CATHER INE BETH BRANSON , APPELLANTS
v. COVENANT HEALTH SYSTEM d/b/a COVE NANT MEDICAL CENTER and COLL IN LANGL ITZ, APPELLEES

_________________________________ FROM THE 99 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-520,034; HON. MACKEY HANCOCK, PRESIDING

_______________________________ Before REAVIS and CAMPBELL, JJ., and BOYD, S.J. 1 MEMORAND UM OPINION Appellant

Bobbie Adams He nsa rling, individually and as executrix of the estate of Charles Hensarling, Cheryl Ann Jennings, K eith Randall Hensarl ing, and Catherin e Beth Branson (collectively referred to as Hensarling) appeal from an order striking their medical2

expert and g ranting s ummary jud gment to a ppellee s Covena nt Health System d/ b/a CovenantMedical Center (Covenant) and Collin Lan glitz (La nglitz) w ith respe ct to Hensarling’s claims for health care liability. The granting o f summary judgment was premised on the fact that without the testimony of Dr. Lawson Bernstein, Hensarling could notraise a fact issue on the causation element of the claims. Therefor e, the is sue befor

e us is wheth er th e trial court acted properly in striking Bernstein as an expert witness because he was n ot quali fied to te stify on the element of causation. We affirm the judgment of the tria l court. Background Charles Hensarling was admitted to Covenant on Aug ust 8, 2000, with a subarac hnoid hemorrhage. Successful surgery was performed with respect to that
c ondition. However, Charles remained in the hospital for the next three weeks suffering from complications s uch as pneumonia, respiratory failure, intermittent atrial fibrillation, central line sepsis, deep vein t hrom bosis, and confusion. He was in intensi ve care until Septembe r 1, at wh ich time he was tr ansferred to a regu lar room. Around 11:45 that evening, Charles became agitated. Langlitz, the nurse on duty, gave him a fi ve mg. dose of Haldol intravenously pursuant to the order of Dr. Matthew Wills. Shortly thereafte r, Charles’ oxygen saturation decreased to 60. Lan glitz called Wills’ office and spoke to his nurse pra ctitione r, who arr ived at t he hospi tal. Thereafter, Charles
was transferred back to intensive care and was i ntuba ted by Dr. Larry Warmoth. His respirato ryproblems

improved for a whi le but se veral ho urs later, his condition deteriorated and he d ied arou nd 6:30 a .m.2 Wills wa s later d ismissed from the l awsuit. 3 Hensarling sued the hospital, Langlitz, and W ills, alleging that Charles died as a resultof an adverse reaction to Haldol which Langlitz failed to recognize a n d treat. 2 In support thereof, Hens arling s ubmitted the expe rt report of Bernste in. The defendan ts moved to dismiss the lawsuit, alleging Bernstein w as not qu alified to render the opinions he gave in his report. The trial court initiall y denied the motions. Howeve r, the def endants again moved to strikeBernstei n as an e xpert an d moved fo r summary judgment. The trial court granted the motion on the basis that Bern stein wa s not qua lified to render an opinion on causation. Standard of Review A witness qualified as an ex pert by knowledge, skill, experience, training, or education may testi fy in theform of an opinion . T EX
. R. E VID
. 702. Howeve r, a licensed doctor is n ot automatically qualified to testify as an expert on every medical question. Broders v. Heise, 924 S.W.2 d 148, 15 2 (Tex. 1 996); Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 23 3 ( Tex. App.--Amarillo 2003. no pet.). Nevertheless, an expert may be qualified to testify even though he is not a specialist in the particular branch of medicin e for whi ch the tes timony is offered, Blan v. Ali, 7 S.W.3d 741, 745 (Tex . App.-- Houston [14 th Dist.] 1999, no pet.), as long as he has sufficient familiarity with the specific subject matter. Broders v . Heise, 924 S.W.3 d at 153. Thus, th e trial court must meas ure the doctor’s

experti se again st the opi nion bei ng off ered. SunBridge Healthcare Corp. v. Penry, 160 S.W.3 d 230, 23 7 (Tex. A pp.--Texarkana 20 05, no pe t.); Marvelli v. Alsto n, 100 S.W.3d 460, 47 4 (Tex. Ap p.--Fort Worth 2003, pet. denied). The offering party has the4

burden to establish that the witness is qualified, Gammill v. Jack Wil liams C hevrolet , Inc., 972 S.W.2d 713, 718 (Tex . 1998), and we review the trial court’s deci sion to strike the testimony

of an ex pert for a buse of d iscretio n. Broders v . Heise, 924 S.W.2d at 151. Analys is Bernstein’s curricul um vitae represent s that he maintains a practice in “[f]orensic & [n]europsychiatricconsulting . . . with expertise in the assessment and treatment of closed head injuries , stroke, toxic environmental exposure, chronic pain conditions a nd other neurological/neuropsychiatric conditions.” He testified at his deposition that he practices “in the realm of neuropsychiatry, which is the practice of psychia try when it’s inte rfaced wi th neurology, internal medicine and . . . neurotoxicology.” The primary focus of his practice is on the pharmacological management of those problems, whi ch in cludes prescribing drugs such as Haldol and the effects of those drugs. He d id his residency in general psychiat ryand is board certifie d by the American Board of Psychiatry and Neurolog y in psychiat ryand by the American College of Forensic Medic ine in forensic psychiatry. He also teaches neuropsychiatry and trains neurosurgeons in identification and management of drug and alco hol w ithdrawal and the identification and management of adverse neurological sequelae from that condition, management of delirium, and informed consent issues. The gist of his opinion on ca usation was that the Haldol caused adystonic reaction, the dystonic reaction caused respiratory distress, the respiratory distress caused a period of hypoxia, the hypoxia produced AR DS (acute respiratory distress syndrome) and the3 Without a n autopsy , which t he family apparen tly decl ined, thi s cause of death cannot be

confirme d. 5 ARDS caused t he death of Charl es. Howe ver, D r. War moth, who signed the death certifica te, determ ined thecause of death tobe a pul monary emb olism. 3 B ernstein testified that in terms of management of ARDS, he has provid ed neuropsychiatric management for patients that have ARDS in the hospital but leaves the managementof the ARDS itself in the h ands of s peciali sts. He has h ad the op portunity to diagnose ARDS on his own but rarely does so. Further, if he suspected that a patient had
a pulmonary embolus, he would bring it to the attention of the team of physicians he works with but would not generally be the one to provide the treatment, al though he has diagnosed pulmonary embolus probably over a hundre d times in his career. Bernstein conceded that pulm onologis ts have more training than he does in matters related to the lungs but contended that, under this unique se t of circ umstances, his experience and traini ng are equivalent to those of a pulmonologist. Generally in his practice, he is no t asked to determinethe caus e of deat h. General experience in a specialized fie ld is not sufficient to qualify a witness as an expert. Reed

v. Granbu

ry Hosp. C

orp., 117 S.W.3d 404, 410 (Tex. App.--Fort Worth 2003,
no pet.). It must be show n that the doct or posses ses speci al knowl edge as to the very matter on which he proposes to giv e an opi nion. Keo v. Vu , 76 S.W.3d 725 , 731 (Tex. App.--Houston [1 stDist.] 2002, pet. denied). Bernstei n’s theory of causation involved a sequential series of conditi ons stemm ing initia lly from a reaction to Haldol and ultimately leading to his death. However, several steps in that sequ ential serie s involved the deve l opmentof speci fic pulmo nary cond itions w hich cou ld devel op witho ut a react ion to4 The standard of review for a no-evidence motion for summary judgment is fully discussed in Kimber

v. Sider is, 8 S.W.3d 672, 674-75 (Tex. App.--Ama rillo 19 99, no pe t.).

6 Haldol. While Bernstein had specific expe rience with the administration of Haldol and its effect s, the rec ord shows he had general experie nce with both ARD S and pu lmonary embolus in terms of providing psychiatric assistance to patients suff ering from those problems. The trial court could have found that Be r nstein did not have the specialized knowled ge neces sary to es tablish the eleme nt of caus ation. Hensarling relies heavily on our opinion i n Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214 (Tex. App.--Amarillo 2003, no pet.) for the proposition that “the opinions of other doctors who agree with the expert in question are relevant to evaluating the expert’ s qualif

ications and the reliabi lity of h is opini ons.” However, we noted the cause of death of

fered by o ther d octors in tha t case only for the purpose of showing that the opinions offered did not requ ire an expertise peculiar to the fields of ca rdiology or urology in determin ing that the trial court di d not abu se it dis cretion i n admitti ng the te stimony. Id. at 234. Whether or not we might have decided the matter differently from the trial court is notthe test. The propriety of the trial court’s admission or exclusion of expert testimony is tested against

an abuse

of discre ti on wh ich means whether the court acted without reference to guidi ng princ iples or rules. Daniels

v. Vance , 175 S.W.3d 889, 894 (Tex. Ap p.- -Texarkana 2005, no

pet.); Keo v. Vu

, 76 S.W.3d at730. We cannot find that it did so here. Withoutthe testimonyof Bernstein on causation, Hensarling has fail ed to produce
more than a scintilla of evidence to defeat the no-evidence motion for summary

judgment. 4 See Crocke r v. Paulyne ’s Nursi ng Home, Inc., 95 S.W.3d 416, 423 (Tex. App.--Dallas 1992, no writ). According ly, we mu st and do affirm thejudgment of the tri al court.7 John T. Boyd Senior Justice