From Cowles & Thompson, Dallas, Texas.

Corresponding author: Russell G. Thornton, Cowles & Thompson, 901 Main Street, Suite 4000, Dallas, Texas 75202.

Here I will provide some insight on the judge's role in litigation and the parameters within which judges have to operate when presiding over cases. Further, I will discuss recent developments that give judges the power to act on some issues that frustrate health care providers. The judicial system appears to recognize these concerns and is making some effort to address them.

THE ROLES OF JUDGE AND JURY

Resolution of any legal claim, including a health care liability claim, centers on answering 2 types of questions: questions of law and questions of fact. To fully understand the judge's role in litigation, the nature of these questions must be examined.

The judge resolves questions of law, which focus primarily on 3 areas. First, what are the elements of the plaintiff's claim that must be proved in order to merit recovery? Second, did the defendant have a duty to act under the circumstances? Third, is the evidence presented sufficient, from a legal standpoint, to allow the case to be submitted to the jury?

In the context of a health care liability claim, the question of law about the elements of the claim is generally not in controversy. Case law establishes the elements as follows:

1. A legally cognizable duty that requires the health care provider to conform to a certain standard of conduct for the protection of another against an unreasonable risk (i.e., adherence to an applicable standard of care)
2. The health care provider's failure to discharge the above duty (i.e., breach of the standard of care)
3. The resulting actual injury to the plaintiff
4. A reasonably close causal connection between the health care provider's conduct and the plaintiff's resulting injury (1)

A question of law often exists about duty. Numerous recent cases have dealt with whether or not health care providers have a duty to act in certain situations—for example, whether or not a health care provider has a duty to a child's parent to not misdiagnose parental abuse (2) or whether or not an on-call specialist's discussions with an emergency room physician about a potential patient are sufficient to create a physician-patient relationship (3). The judge makes these decisions.

From the evidentiary threshold standpoint, the judge's role is to ensure that more than a “scintilla” of legally sufficient evidence exists (4). This burden is met if there is “some evidence” to support the elements of a claim (5). If the proof supplies a basis upon which reasonable minds may reach different conclusions about the existence of a vital fact, the requirement is fulfilled (6). From another point of view, the case should not be submitted to the jury and the judge should instruct a verdict against the claimant when there is “no evidence” of the elements of a claim, when the evidence presented is viewed in the light most favorable to the claimant, and when every reasonable inference is indulged in the claimant's favor (7). This is not a burdensome requirement.

Questions of fact are the ultimate issues resolved by the jury answering the questions submitted to it by the court. The jury determines the credibility of the witnesses, weighs a witness's testimony, and resolves any inconsistencies in the testimony (8). If experts testify, the jury weighs the experts' opinions and judgments and decides whom to believe (9).

In the context of health care liability claims, questions of fact often center on disputes such as whether or not a patient was advised of a risk or hazard associated with a proposed treatment or whether or not a physician instructed a patient to follow-up or return for evaluation within a certain time frame. Further, when expert witnesses differ as to the standard of care applicable to the defendant health care providers, a question of fact exists as to whether or not the defendant's conduct was reasonable under the circumstances. Lastly, when experts offer differing opinions on the cause or reason for the claimant's injury or condition, a question of fact exists.

Since most cases, including almost all health care claims, are resolved by jury trial, the judge determines questions of law and the jury determines questions of fact. A judge's determination of questions of law can be obtained through pretrial motions and is also part of the process through which the appropriate questions are submitted to the jury at the conclusion of the trial. Questions of fact, in a jury trial, are the sole province of the jury. In cases of a bench trial, or a trial before the court, the judge's role is to answer both questions of law and questions of fact.

Thus, in a health care liability claim, if a patient and a physician differ over information or instructions that were provided by the physician to the patient, the judge cannot determine which of the 2 parties is correct, even if the physician has documentation that supports his position. Likewise, if the experts retained by the patient and by the health care provider differ over the appropriate standard of care, whether the standard of care was met, or whether the conduct caused injury to a patient, the judge cannot decide who is correct. The judge only determines if the evidence is legally sufficient to submit to the jury. Only some evidence of the elements of the plaintiff's case is required. If more than a “scintilla” exists, conflicting “facts” must be determined by a jury. The only way for a jury to answer those questions is at the end of a jury trial.

“DAUBERT” ISSUES

In 1993, in a case referred to as “Daubert,” the US Supreme Court addressed a long-standing concern about whether or not expert testimony is reliable and relevant enough to be put before the jury as a fact question. This decision was a good sign to those concerned about the entry of “junk science” into litigation. Daubert and its progeny were behind the disqualification of professional experts used by plaintiffs in breast implant litigation. Prior to Daubert, problems on these matters stemmed from the fact that the rules of evidence of the various states, as well as the Federal Rules of Evidence, were very broad in guidance on who is an expert witness and on what constitutes expert testimony. Daubert v. Merrill-Dow Pharmaceuticals, Inc., took the first step in refining the broad guidelines in the rules of evidence and truly focusing on these issues (10). Following this decision, challenges to an expert witness's qualifications, to the relevance of expert testimony, or to the reliability of such testimony are generically referred to as Daubert challenges.

The Texas Rules of Evidence provide as follows, with respect to the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise (11).

In short, Rule 702 contains 3 requirements for the admissibility of expert testimony: 1) the witness must be qualified; 2) the proposed opinion testimony must be grounded in “scientific, technical, or other specialized knowledge”; and 3) the testimony must “assist the trier of fact to understand the evidence or to determine the fact in issue” (12).

Given the breadth of Rule 702, since medical doctors and other health care providers certainly have specialized knowledge, skill, experience, and training that would be of assistance to lay individuals such as jurors, these individuals were generally found qualified to provide expert testimony at trial. By being able to do so, testimony by these individuals would ensure the viability of a professional liability or products liability claim. “Some evidence” of the claim's elements would come from such testimony. Expert testimony harmful to defendants on the issues of standard of care violations and causation would be sufficient to allow and require submission of the claim to a jury for ultimate resolution.

In Daubert, the issue was whether or not the claimant's 2 minor children suffered birth defects as a result of their mother's ingestion of the drug Bendectin, which was marketed by Merrill-Dow Pharmaceuticals. Merrill-Dow moved for dismissal of the claim on the basis that there was no evidence the drug caused the alleged side effects. The claimant offered testimony from 8 credentialed experts who rendered opinions that the drug in question can cause these defects. The issue before the Supreme Court was the role the judge was to have in screening experts and, if the judge had such a role, the standards to be applied.

In its review, the US Supreme Court found that the role of trial judges was to ensure that any and all scientific testimony or evidence admitted and considered was both relevant and reliable. The Supreme Court held that trial judges must find that an expert's testimony is based on scientific knowledge that would assist a trier of fact to understand or determine a fact issue. The court ruled that “scientific knowledge” is an inference or assumption derived by scientific method.

Daubert held that the judge, as a “gatekeeper” on experts and their testimony, should consider certain factors:

1. Whether a “theory or technique can be (and has been) tested”
2. Whether the theory “has been subjected to peer review and publication”
3. Whether, in respect to a particular technique, there is a high “known or potential rate or error” and whether there are “standards controlling the technique's operation”
4. Whether the theory or technique enjoys “general acceptance” within a “relevant scientific community” (13)

Thus, under Daubert, the Supreme Court clarified that trial judges were to determine whether or not witnesses were qualified to render the opinions they were going to provide and whether or not the subject matter of their testimony was relevant and reliable. Texas adopted this interpretation of the Rules of Evidence and the judge's role as a gatekeeper in 1995 in E.I. DuPont de Nemours v. Robinson (14).

Following the Texas Supreme Court's decision in Robinson, Texas courts began to address these issues with a fair degree of frequency. Examination of the Daubert/Robinson decisions and their progeny reveals that 3 questions must be answered by the court, to its satisfaction, for an expert's testimony to be admissible. First, the witness must be qualified to testify. Second, the expert's testimony must be relevant to the subject matter. Third, the testimony must be reliable.

There is no set test which a judge is to follow in his role as a gatekeeper on a witness's qualifications to testify as an expert. As set forth above, Rule 702 of the Texas Rules of Evidence provides that the necessary expertise can be based on knowledge, skill, experience, training, or education (Table). Recent cases out of the Texas Supreme Court established that the party seeking to introduce expert testimony must demonstrate that the witness possesses specialized knowledge on the subject matter (16).

In the context of health care liability claims, an individual with a medical license is not automatically qualified to testify as an expert on medical questions (17). The expert in question must demonstrate expertise with the treatment, diagnosis, or use of the medical equipment at issue (18).

The requirement that the testimony be relevant must also be established by the proponent of the testimony (19). Relevancy is determined under Rules 401 and 402 of the Texas Rules of Evidence. Testimony is relevant if it is “sufficiently tied to the facts of the case and will aid the jury in resolving a factual dispute” (20). While the relevancy of testimony is not something that is generally in dispute, it is still something that the proponent of the testimony must establish in order for it to be admissible.

The reliability of the testimony offered must also be established by the proponent (19). Robinson outlined 6 factors to be considered by the court in resolution of this question:

1. The extent to which the theory has been or can be tested
2. The extent to which the technique relies upon the subjective interpretation of the expert
3. Whether the theory has been subjected to peer review and/or publication
4. The technique's potential rate of error
5. Whether the underlying theory or technique has generally been accepted as valid by the relevant scientific community
6. The nonjudicial uses that have been made of the theory or technique (21)

While these factors may differ on a case-by-case basis, these 6 criteria are where any analysis of reliability should begin (22).

Challenges to the reliability of an expert's testimony generally have the highest chance of success. Relevancy can be easily established, since it requires only that the testimony be “tied to the facts of the case.” Additionally, a challenge to an expert's qualifications can often be overcome by the expert's own testimony about his purported training, experience, and involvement with similar injuries, illnesses, or conditions. A challenge on the basis of reliability, however, requires the testimony's proponent to show that the theories or opinions in question are accepted in the medical community. Thus, the expert's own testimony may not be sufficient.

This point was recently illustrated in Black v. Food Lion. An expert testified that a customer's fall at a supermarket caused hormonal damage, which resulted in fibromyalgia. The Fifth Circuit held that admission of this expert testimony at trial was improper because the testimony was not sufficiently reliable. The theory that a fall could cause hormonal damage that could lead to fibromyalgia was not verified by scientific testing, verified by peer-reviewed literature, or accepted by the scientific community as valid (23).

Establishing the trial judge as a “gatekeeper” with respect to expert testimony will not resolve the frustration health care providers may have over the absence of expedient and appropriate resolution of questionable claims. Despite his gatekeeper status, a judge cannot weigh or assess which party's testimony is more credible. What Daubert and its progeny have done, however, is to require the proponents of testimony to come forward with a reasonable basis and support of expert testimony. Unfortunately, this is an imperfect world. The parties still must rely on the trial judge to interpret and evaluate the evidence and case law, to have the appropriate temperament and demeanor to take this role seriously, and to be proactive in resolving health care liability claims. Many judges still see juries as the final arbiters of these disputes, given the constitutional right to a jury trial. For this reason, they are hesitant to take a case away from the jury regardless of the circumstances. This must be recognized and accepted as part of the judicial process.

1. Price v. Hurt, 711 S.W.2d 84, 86 (Tex. App.—Dallas 1986, no writ); Cloys v. Turbin, 608 S.W.2d 697, 700 (Tex. Civ. App.—Dallas 1980, no writ).
2. Byrd v. W.C.W., 868 S.W.2d 767, 769–770 (Tex. 1994).
3. St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995); Ortiz v. Shaw, 905 S.W.2d 609, 611 (Tex. App.—Houston [14th Dist.] 1995, writ den'd).
4. McKnight v. Hill & Hill Exterminators, 689 S.W.2d 206, 207 (Tex. 1985).
5. Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995).
6. Rowe v. Rowe, 887 S.W.2d 191, 196 (Tex. App.—Fort Worth 1996, writ den'd).
7. Guy v. Stubberfield, 666 S.W.2d 176, 178 (Tex. App.—Dallas 1983, no writ).
8. St. Paul Medical Center v. Cecil, 842 S.W.2d 808, 812 (Tex. App.—Dallas 1992, no writ).
9. Pratt v. State, 907 S.W.2d 38, 47 (Tex. App.—Dallas 1995, writ den'd).
10. Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).
11. Texas Rules of Evidence, Rule 702.
12. Campos v. State, 977 S.W.2d 458, 462 (Tex. App.—Waco 1998, no pet. h.).
13. Daubert, 509 U.S. at 592-594.
14. E.I. DuPont de Nemours v. Robinson, 923 S.W.2d 549 (Tex. 1995).
15. Tex. Rev. Civ. Stat. ann. Art. 4590I, ?14.01(a)(1), (2) and (3) (Vernon's Supp. 1999); Broders, 924 S.W.2d at 152–153; Baird, 991 S.W.2d at 921.
16. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998) (The Supreme Court held that the trial court did not abuse its discretion in excluding plaintiff's expert opinions about design defects in an automobile accelerator and restraint system, since the expert was not shown to have experience in designing or testing automobiles, but was only shown to have experience in designing and testing fighter planes); Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) (Trial court did not abuse its discretion in excluding plaintiff's expert opinions on causation, since the emergency physician was not shown to have specialized knowledge on the issue of causation. The witness was only shown to have greater knowledge of medicine generally than a lay person).
17. Broders, 924 S.W.2d at 152.
18. Broders, 924 S.W.2d at 152; Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918, 921 (Tex. App.—Fort Worth 1999, no writ).
19. Daubert, 509 U.S. at 597; Robinson, 923 S.W.2d at 556.
20. Gammill, 972 S.W.2d at 720.
21. Robinson, 923 S.W.2d at 557.
22. Black v. Food Lion, 171 F.3d 308, 310–311 (5th Cir. 1999).
23. Black, 171 F.3d at 313–314.