§ 74.401.Qualifications of Expert Witness in Suit Against Physician

Title 4. Liability in Tort · Chapter 74. Medical Liability · Subchapter I. Expert Witnesses · Last amended 2003 · Last verified August 29, 2026

In one sentenceSection 74.401 requires a standard-of-care expert against a physician to be a practising physician with knowledge of the relevant standards and qualifying training or experience, with departure permitted for stated good reason.

Full Text of § 74.401

Text sizeJump to: (a) (b) (c) (d) (e) (f) (g)

(a)In a suit involving a health care liability claim against a physician for injury to or death of a patient, a person may qualify as an expert witness on the issue of whether the physician departed from accepted standards of medical care only if the person is a physician who:

(1)is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;

(2)has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3)is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

(b)For the purpose of this section, "practicing medicine" or "medical practice" includes, but is not limited to, training residents or students at an accredited school of medicine or osteopathy or serving as a consulting physician to other physicians who provide direct patient care, upon the request of such other physicians.

(c)In determining whether a witness is qualified on the basis of training or experience, the court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness:

(1)is board certified or has other substantial training or experience in an area of medical practice relevant to the claim; and

(2)is actively practicing medicine in rendering medical care services relevant to the claim.

(d)The court shall apply the criteria specified in Subsections (a), (b), and (c) in determining whether an expert is qualified to offer expert testimony on the issue of whether the physician departed from accepted standards of medical care, but may depart from those criteria if, under the circumstances, the court determines that there is a good reason to admit the expert's testimony. The court shall state on the record the reason for admitting the testimony if the court departs from the criteria.

(e)A pretrial objection to the qualifications of a witness under this section must be made not later than the later of the 21st day after the date the objecting party receives a copy of the witness's curriculum vitae or the 21st day after the date of the witness's deposition. If circumstances arise after the date on which the objection must be made that could not have been reasonably anticipated by a party before that date and that the party believes in good faith provide a basis for an objection to a witness's qualifications, and if an objection was not made previously, this subsection does not prevent the party from making an objection as soon as practicable under the circumstances. The court shall conduct a hearing to determine whether the witness is qualified as soon as practicable after the filing of an objection and, if possible, before trial. If the objecting party is unable to object in time for the hearing to be conducted before the trial, the hearing shall be conducted outside the presence of the jury. This subsection does not prevent a party from examining or cross-examining a witness at trial about the witness's qualifications.

(f)This section does not prevent a physician who is a defendant from qualifying as an expert.

(g)In this subchapter, "physician" means a person who is:

(1)licensed to practice medicine in one or more states in the United States; or

(2)a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association only if testifying as a defendant and that testimony relates to that defendant's standard of care, the alleged departure from that standard of care, or the causal relationship between the alleged departure from that standard of care and the injury, harm, or damages claimed.

End

Plain-English Summary

The qualification rules for the expert whose report and testimony carry a claim against a doctor.

A person may qualify only if the person is a physician who: is practicing medicine at the time the testimony is given or was practicing when the claim arose; has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved; and is qualified on the basis of training or experience to offer an opinion on those standards.

All three, and the first excludes the professional witness who has left practice. But "practicing medicine" is defined generously to include training residents or students at an accredited school and serving as a consulting physician to other physicians who provide direct patient care, on request.

Subsection (c) tells the court what to weigh on training or experience: whether the witness is board certified or has other substantial training or experience in an area of medical practice relevant to the claim, and is actively practicing medicine in rendering medical care services relevant to the claim — assessed either when the claim arose or when the testimony is given.

Subsection (d) is the safety valve. The court applies the criteria but may depart from them if there is a good reason to admit the testimony, and shall state on the record the reason for departing. Discretion exists, and it is exercised in the open.

Objections have a deadline: the later of 21 days after receiving the witness's curriculum vitae or 21 days after the deposition. A later objection is allowed only on circumstances that could not reasonably have been anticipated. The hearing is held as soon as practicable and, if possible, before trial — otherwise outside the jury's presence.

A defendant physician may qualify as an expert. And for this subchapter, "physician" includes someone licensed in any US state — or a graduate of an accredited medical school, but only if testifying as a defendant about their own care.

Frequently Asked Questions

Who can testify against a doctor in a Texas malpractice case?

A physician who is practicing medicine at the time of testimony or was when the claim arose, has knowledge of the accepted standards for the condition involved, and is qualified by training or experience to opine on them.

Does the expert have to be in the same specialty?

Not in terms. The court considers board certification and substantial training or experience in an area of practice relevant to the claim, and may depart from the criteria for good reason stated on the record.

Does teaching count as practising medicine?

Yes. Training residents or students at an accredited school of medicine or osteopathy, and serving as a consulting physician to physicians providing direct patient care, are included.

When must I object to an expert's qualifications?

By the later of 21 days after receiving the curriculum vitae or 21 days after the deposition, unless circumstances arise that could not reasonably have been anticipated.

Must the expert be licensed in Texas?

No. "Physician" here means a person licensed to practice medicine in one or more states of the United States.

Amendment History

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.

Source & verification. Section text is reproduced verbatim from Texas Legislature Online (statutes.capitol.texas.gov). Enacted by the Texas Legislature. Current through May 14, 2026. Last verified August 29, 2026. · Official source