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Zawislak v. Moskow

Court of Appeals of Texas, Third District, Austin

May 22, 2019

Walter Zawislak, MD, Appellant
v.
Dr. John Bruce Moskow, MD, Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. D-1-GN-18-002286, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          MEMORANDUM OPINION

          MELISSA GOODWIN, JUSTICE

         Walter Zawislak, M.D., appeals from the trial court's order granting Dr. John Moskow's Rule 91a motion to dismiss. See generally Tex. R. Civ. P. 91a.1-.9 (permitting dismissal of claims having "no basis in law or fact"). Zawislak asserted a negligence claim against Moskow related to Moskow's statements as an expert at an administrative disciplinary proceeding initiated by the Texas Medical Board (TMB) against Zawislak. Moskow timely moved to dismiss the suit under Rule 91a on the ground that Moskow's testimony was entitled to absolute immunity. See id. R. 91a.3 (setting out timing requirements for motion). The trial court granted the motion and awarded Moskow attorney's fees and costs. See id. R. 91a.5 (stating requirements for dismissal), .7 (providing for costs and attorney's fees). For the reasons stated below, we affirm.

         BACKGROUND[1]

         On June 4, 2012, TMB filed a complaint against Zawislak for violations of the Medical Practice Act. The disciplinary proceedings were assigned to an Administrative Law Judge (ALJ) for the State Office of Administrative Hearings (SOAH). "TMB retained/contracted with their agent . . . Moskow . . . to provide an expert medical investigative report, expert report, and expert witness deposition," and Moskow "is/was an expert review panelist for [TMB] pursuant to Tex. Occ. Code § 154.056(e)." See Tex. Occ. Code § 154.056(e) (providing that expert physician panel shall be appointed by board to assist with complaints and investigations relating to medical competency by acting as expert physician reviewers). Zawislak moved to strike Moskow's expert testimony on five grounds:

(1) Dr. Moskow should be stricken as an expert for lack of qualifications by education, training or experience from testifying in the SOAH proceeding[;]
(2) that Dr. Moskow is not qualified to testify because Dr. Moskow was not actively practicing medicine or rendering emergency medical treatment after, at best, 2008[;]
(3) that he did not render emergency medical treatment during the time relevant to respondent[;]
(4) that Dr. Moskow indicated in his expert witness deposition that he did not practice emergency medicine in his offices - Emergency Services Partners - and that he did not provide medical care to any patients outside of an emergency room at the time of the TMB's Underlying Complaint in the case and Substantive issues of Law and Fact before the SOAH court against the Plaintiff; and
(5) that [] Dr. Moskow spends all of his time handling administrative matters for his business [Emergency Services Partners], and not providing medical treatment.

(Internal marks, footnotes, and citations omitted.) The ALJ overruled the motion. After a hearing on the merits, the ALJ issued a proposal for decision on December 5, 2014, finding that Zawislak violated the Medical Practice Act and TMB's Rules. On February 13, 2015, TMB adopted the ALJ's proposal, publicly reprimanded Zawislak, imposed continuing medical education and testing requirements, and required Zawislak's practice to be monitored by a physician for a specified time period, among other requirements.

         On January 2, 2018, and as amended on January 19, Zawislak filed suit against Moskow and others.[2] Zawislak alleged that Moskow committed negligence because:

Defendant violated statute(s) Title 3, Subtitle B, of the Texas Occupations Code § 156.007(a) and (b); § 164.05(a)(1) and (3); § 164.052(a)(1) and (5); and § 164.053(a)(1), the Texas Administrative Code § 163.11 (a) and (b), as well as the American College of Emergency Physicians to qualify as an expert witness in the specialty of ...

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