§ 74.402.Qualifications of Expert Witness in Suit Against Health Care Provider

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

In one sentenceSection 74.402 requires a standard-of-care expert against a health care provider to be practising in a field involving the same type of care, with knowledge of the standards and qualifying training or experience.

Full Text of § 74.402

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

(a)For purposes of this section, "practicing health care" includes:

(1)training health care providers in the same field as the defendant health care provider at an accredited educational institution; or

(2)serving as a consulting health care provider and being licensed, certified, or registered in the same field as the defendant health care provider.

(b)In a suit involving a health care liability claim against a health care provider, a person may qualify as an expert witness on the issue of whether the health care provider departed from accepted standards of care only if the person:

(1)is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if the defendant health care provider is an individual, at the time the testimony is given or was practicing that type of health care at the time the claim arose;

(2)has knowledge of accepted standards of care for health care providers 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 health care.

(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 certified by a licensing agency of one or more states of the United States or a national professional certifying agency, or has other substantial training or experience, in the area of health care relevant to the claim; and

(2)is actively practicing health care in rendering health 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 defendant health care provider departed from accepted standards of health care but may depart from those criteria if, under the circumstances, the court determines that there is 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)This section does not prevent a health care provider who is a defendant, or an employee of the defendant health care provider, from qualifying as an expert.

(f)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.

End

Plain-English Summary

The counterpart provision for claims against non-physician providers, and its first requirement is drawn differently.

A person may qualify only if the person is practicing health care in a field of practice that involves the same type of care or treatment as that delivered by the defendant health care provider, if that provider is an individual, at the time the testimony is given or was practicing that type of health care when the claim arose; has knowledge of accepted standards of care for the condition involved; and is qualified on the basis of training or experience.

"Same type of care or treatment" is the operative phrase, and it is stricter than the physician provision, which asks only for relevant training or experience. A nurse's standard of care is testified to by someone practising nursing care of that type.

"Practicing health care" is defined inclusively: training providers in the same field at an accredited educational institution, or serving as a consulting provider while licensed, certified, or registered in the same field.

Subsection (c) directs the training-or-experience assessment to whether the witness is certified by a state licensing agency or a national professional certifying agency, or has other substantial training or experience in the relevant area, and is actively practicing health care in services relevant to the claim.

The same good-reason departure applies, with the reason stated on the record, and the same 21-day objection deadline running from the curriculum vitae or the deposition.

Subsection (e) is broader than its physician counterpart: the section does not prevent a defendant provider or an employee of the defendant provider from qualifying as an expert.

Frequently Asked Questions

Who can testify against a nurse or hospital in Texas?

A person practising health care in a field involving the same type of care or treatment as the defendant, with knowledge of the accepted standards and qualifying training or experience.

Is this stricter than the rule for physicians?

On its first element, yes. It requires practice in a field involving the same type of care, where the physician provision asks for relevant training or experience.

Can the defendant's own employee be an expert?

Yes. The section does not prevent a defendant provider or an employee of the defendant provider from qualifying.

Can the court depart from the criteria?

Yes, for good reason stated on the record.

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