Fondren Orthopedic Group, LLP and Hussein Adel Elkousy, M.D. v. Justin M. Sherman

• Court: Court of Appeals of Texas
• Decided: November 13, 2018
• Docket: 01-18-00545-CV
• Status: Published

Opinion

Opinion issued November 13, 2018.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00545-CV ——————————— FONDREN ORTHOPEDIC GROUP, LLP AND HUSSEIN ADEL ELKOUSY, M.D., Appellants V. JUSTIN M. SHERMAN, Appellee

On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2017-37482

MEMORANDUM OPINION

This is an interlocutory appeal from the trial court’s denial of appellants

Fondren Orthopedic Group, LLP’s and Hussein Adel Elkousy, M.D.’s motion to

dismiss the healthcare liability claims filed against them by appellee Justin M. Sherman. In two issues, Fondren and Dr. Elkousy argue that the trial court abused

its discretion by denying their motion to dismiss because: (1) Sherman’s expert is

not qualified to opine on the applicable standard of care and alleged breaches of the

standard of care; and (2) Sherman’s expert report failed to sufficiently set forth the

applicable standard of care, breach of the standard of care, and the causal relationship

between the breach and Sherman’s alleged injury. Because Sherman’s expert report

does not meet the statutory requirements, we reverse the trial court’s order denying

Fondren’s and Dr. Elkousy’s motion to dismiss.

Background

Sherman’s medical records are not before us, therefore, we accept the factual

statements in Sherman’s expert reports, prepared by Dr. Jason Nirgiotis, for the

limited purpose of this appeal.1

Sherman injured his left shoulder in a motorcycle accident on June 5, 2015.

His treating physician, Dr. Hussein Adel Elkousy (Dr. Elkousy) of the Fondren

Orthopedic Group, LLP (Fondren), performed a “left distal clavicle AC joint open

reduction/internal fixation with arthrex dog bone construct for implant” on Sherman

on June 17, 2015.

1 See Marino v. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (citing Shenoy v. Jean, No. 01–10–01116–CV, 2011 WL 6938538, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem. op.)).

2 Nine days after his surgery, Sherman developed severe pain and swelling in

his left shoulder. He went to the emergency room where he was diagnosed with an

infection in his operative site.2 The following day, June 27, 2015, Dr. Elkousy

performed a second operation on Sherman, namely, “a left shoulder open and

arthroscopic irrigation and debridement of abscess and hematoma with removal of

hardware.” Dr. Elkousy also performed two more irrigation and debridement

operations on June 30 and July 1.

Sherman saw Dr. Elkousy for a post-operative visit on July 16. One of Dr.

Elkousy’s notes from that visit states, “I will take ownership of the infection as it

occurred after my surgery. The organism is a common one found in the community

so it is not clear how it was acquired, but we will make the assumption that it

occurred from surgery.” Dr. Nirgiotis states in his report that “during that office visit,

which was recorded by Justin Sherman, Dr. Elkousy state[d] that the blame for the

infection is no one else’s but his.”

Sherman sued Dr. Elkousy and Fondren3 for medical malpractice on June 5,

2017. On October 20, 2017, Sherman served Dr. Elkousy and Fondren with Dr.

Nirgiotis’s expert report. Dr. Elkousy and Fondren objected to the sufficiency of the

2 Dr. Nirgiotis’s report does not identify the type of infection Sherman developed. 3 Sherman non-suited his claims against a third defendant, The Texas Orthopedic Hospital.

3 report and moved to dismiss Sherman’s medical malpractice claims pursuant to

section 74.351(b) of the Texas Civil Practice and Remedies Code. Specifically, Dr.

Elkousy and Fondren argued that Sherman’s expert report failed to establish on its

face that Dr. Nirgiotis is qualified to render opinions in this case, and that the report

failed to adequately set forth the standard of care, breaches in the standard of care,

and the causal relationship between any alleged breach and any injury suffered by

Sherman. After considering the motion and Sherman’s response, the trial court

granted Sherman a 30-day extension to file an amended report.4

Sherman timely served Dr. Elkousy and Fondren with Dr. Nirgiotis’s

amended and supplemental expert reports. Dr. Elkousy and Fondren objected to the

sufficiency of Dr. Nirgiotis’s reports on the same grounds they objected to his initial

report and moved to dismiss Sherman’s medical malpractice claims pursuant to

section 74.351(b).

The trial court overruled Dr. Elkousy’s and Fondren’s objections and denied

their motion to dismiss. This interlocutory appeal followed.

4 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West 2017) (stating trial court “may grant one 30-day extension to the claimant in order to cure the deficiency” in initial expert report).

4 Dr. Nirgiotis’s Report5

In his report, Dr. Nirgiotis discusses the techniques and treatments necessary

to prevent the introduction of bacteria into a surgical wound.

The techniques and care required to avoid introducing bacteria to the surgical wound are numerous. First, a dose of appropriate antibiotics must be administered prior to the skin incision. The antibiotic of choice must cover the bacteria most likely to cause infection, especially staph aureus. Then, an appropriate prep of the skin must be done. Sterile technique must be maintained throughout the procedure. The length of the procedure should be minimized, as longer operative times increase infections. Blood loss must be minimized as this also increases infection risk. Gentle handling of tissue should be undertaken to avoid tissue damage, as damaged tissue will be more susceptible to infection. Great care must be taken to make sure that the instruments used are sterile and that the implant has maintained sterility prior to its use. An appropriate dressing should be used to cover the wound at the end of the operation. Appropriate antibiotics should be continued post- operatively when an implant is used.

All of these techniques and treatments apply to everyone involved in the care of Mr. Sherman, including applying to Dr. Elkousy, The Fondren Orthopedic Group, and The Texas Orthopedic Hospital.

Failure to take one or more of these precautions was the proximate cause of Mr. Sherman’s infection.

With respect to Dr. Elkousy, Dr. Nirgiotis opined in his report that:

The standard of care for Dr. Elkousy in treating Mr. Sherman required that he not allow bacteria to be introduced into the wound during his operation on 6/17/15 to repair Mr. Sherman’s shoulder injury. Care must be taken during major orthopedic operations, and especially during operations that involve implants, to ensure that no bacteria are introduced into the wound as this will lead to an infection. Prudent and ordinary care would require Dr. Elkousy to administer appropriate 5 Dr. Nirgiotis’s supplemental report incorporates by reference the opinions he expressed in his initial and amended reports. 5 antibiotics, maintain sterile technique, and generally, not introduce dangerous bacteria into Mr. Sherman’s wound.

....

There was a breach in the standard of care by Dr. Elkousy in treating Mr. Sherman when he allowed bacteria to be introduced into the wound during his operation on 6/17/15 to repair Mr. Sherman’s shoulder injury. Great care must be taken to avoid bacterial infections after major orthopedic operations because it is such a devastating occurrence. This is especially true when an implant is being used. Therefore, it was a breach in the standard of care when adequate measures were not taken by Dr. Elkousy to avoid bacteria from being introduced during Mr. Sherman’s operation.

To a reasonable degree of medical probability, had Dr. Elkousy not allowed bacteria to be introduced during his operation on Mr. Sherman on 6/17/15 to repair Mr. Sherman’s shoulder injury, a devastating infection would not have occurred. Therefore he would not have required three subsequent operations to debride the infected tissue. And therefore, he would not have had to have his implant removed, which has led to constant pain and complete impairment of his shoulder and arm.

With respect to Fondren, Dr. Nirgiotis opined in his report that:

The standard of care for the Fondren Orthopedic Group in assuming care for Mr. Sherman required that they not allow bacteria to be introduced into the wound during the operation on 6/17/15 to repair Mr. Sherman’s shoulder injury. Care must be taken during major orthopedic operations, and especially during operations that involve implants, to ensure that no bacteria are introduced into the wound as this will lead to an infection. Prudent and ordinary care would require Fondren Orthopedic Group to ensure the administration of appropriate antibiotics, the maintenance of sterile technique, and generally, that no dangerous bacteria be introduced into Mr. Sherman’s wound.

6 There was a breach in the standard of care by the Fondren Orthopedic Group in treating Mr. Sherman when they allowed bacteria to be introduced into the wound during the operation on 6/17/15 to repair Mr. Sherman’s shoulder injury. Great care must be taken to avoid bacterial infections after major orthopedic operations because it is such a devastating occurrence. This is especially true when an implant is being used. Therefore, it was a breach in the standard of care when adequate measures were not taken by the Fondren Orthopedic Group to avoid bacteria from being introduced during Mr. Sherman’s operation.

To a reasonable degree of medical probability, had the Fondren Orthopedic Group not allowed bacteria to be introduced during the operation on Mr. Sherman on 6/17/15 to repair Mr. Sherman’s shoulder injury, a devastating infection would not have occurred. Therefore he would not have required three subsequent operations to debride the infected tissue. And therefore, he would not have had to have his implant removed, which has led to constant pain and complete impairment of his shoulder and arm.

Chapter 74 Expert Reports

Section 74.351 of the Civil Practice and Remedies Code serves as a

gatekeeper. No medical negligence cause of action may proceed until the plaintiff

has made a good faith effort to demonstrate that a qualified medical expert believes

that a defendant’s conduct breached the applicable standard of care and caused the

claimed injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6) (West

2017). To constitute a good faith effort, the report must provide enough information

to fulfill two purposes: (1) inform the defendant of the specific conduct that the

plaintiff has called into question; and (2) provide a basis for the trial court to

conclude that the claim has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v.

7 Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001). A report that merely states the

expert’s conclusions about standard of care, breach, and causation does not fulfill

these two purposes. See id. at 879. The expert must explain the basis for his

statements and link his conclusions to the facts. See Bowie Mem’l Hosp. v. Wright,

79 S.W.3d 48, 52 (Tex. 2002). In determining whether the report meets those

requirements, the court should look no further than the report itself, because all the

information relevant to the inquiry must be contained within the report’s four

corners. See id. The expert report is not required to marshal all the plaintiff’s proof

necessary to establish causation at trial. See id.

Sufficiency of Dr. Nirgiotis’s Report

Dr. Elkousy and Fondren argue that the trial court abused its discretion by

denying their motion to dismiss Sherman’s health care liability claims against them

because: (1) the report does not demonstrate the Dr. Nirgiotis is qualified to opine

on the applicable standard of care and breaches of the standard of care; and (2)

Sherman’s report was conclusory and failed to sufficiently set forth the applicable

standard of care, breach of the standard of care, and the causal relationship between

the breach and Sherman’s alleged injury in his expert report.

A. Standard of Review

We review a trial court’s ruling on a motion to dismiss for an abuse of

discretion. See Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when

8 it acts in an arbitrary or unreasonable manner or without reference to any guiding

rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241–42 (Tex. 1985). As a reviewing court on matters committed to the trial court’s

discretion, we may not substitute our own judgment for that of the trial court merely

because we would have ruled differently. See Wright, 79 S.W.3d at 52. A trial court

has no discretion in determining what the law is or in applying the law to the facts.

See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

B. Analysis

In his report Dr. Nirgiotis stated that the applicable standard of care “required

that [Dr. Elkousy] not allow bacteria to be introduced into the wound” during

Sherman’s operation, and that “[p]rudent and ordinary care would require Dr.

Elkousy to administer appropriate antibiotics, maintain sterile technique, and

generally, not introduce dangerous bacteria into Mr. Sherman’s wound.” According

to Dr. Nirgiotis, Dr. Elkousy breached that standard of care “when he allowed

bacteria to be introduced into the wound” during Sherman’s surgery and by failing

to take “adequate measures . . . to avoid bacteria from being introduced during Mr.

Sherman’s operation.” Dr. Nirgiotis further opined that “[t]o a reasonable degree of

medical probability, had Dr. Elkousy not allowed bacteria to be introduced during

his operation on Mr. Sherman on 6/17/15 to repair Mr. Sherman’s shoulder injury, a

devastating infection would not have occurred.”

9 Dr. Nirgiotis offered a practically identical opinion with regard to Fondren.

Specifically, Dr. Nirgiotis opined in his report that the applicable standard of care

“required that [Fondren] not allow bacteria to be introduced into the wound” during

Sherman’s operation, and that “[p]rudent and ordinary care would require Fondren

Orthopedic Group to ensure the administration of appropriate antibiotics, the

maintenance of sterile technique, and generally, that no dangerous bacteria be

introduced into Mr. Sherman’s wound.” According to Dr. Nirgiotis, Fondren

breached the standard of care “when [it] allowed bacteria to be introduced into the

wound” during Sherman’s surgery and failed to take “adequate measures . . . to avoid

bacteria from being introduced during Mr. Sherman’s operation.” He further opines

that, “[t]o a reasonable degree of medical probability, had the Fondren Orthopedic

Group not allowed bacteria to be introduced during the operation on Mr. Sherman

on 6/17/15 to repair Mr. Sherman’s shoulder injury, a devastating infection would

not have occurred.”

Dr. Nirgiotis had previously identified a number of precautionary techniques

and procedures that could prevent the introduction of bacteria into a surgical wound,

and stated that the “[f]ailure to take one or more of these precautions was the

proximate cause of Mr. Sherman’s infection.” However, Dr. Nirgiotis does not

specify how Dr. Elkousy or Fondren deviated from these protocols, and we are not

allowed to draw inferences from the report or speculate as to how Dr. Elkousy and

10 Fondren might have done so. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279

(Tex. App.—Austin 2007, no pet.). Thus, Dr. Nirgiotis’s report is insufficient as to

breach because it does not specifically inform Dr. Elkousy or Fondren of the

negligent acts, or failures to act, that caused the injury to Sherman. See Gray v.

CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st. Dist.] 2006,

no pet.) (“Whether a defendant breached the standard of care due a patient cannot be

determined without ‘specific information about what the defendant should have done

differently.’”) (quoting Palacios, 46 S.W.3d at 880).

Sherman relies heavily on a notation in the medical records and statements

Dr. Elkousy made to Sherman during a post-operative visit to argue that the report

constitutes a good faith effort to comply with Chapter 74’s requirements. Sherman’s

reliance on these statements is misplaced. Dr. Elkousy’s statements that “the blame

for the infection is no one else’s but his,” he will “take ownership of the infection as

it occurred after [his] surgery,” and that he “will make the assumption that [the

infection] occurred from surgery” are not admissions that he or Fondren failed to

exercise ordinary care with regard to the care they provided to Sherman. Cf. Tex. W.

Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 196 (Tex. 2012) (noting “the long-

recognized principle that a physician who exercises ordinary care . . . is not liable to

a patient for a bad outcome”); Palacios, 46 S.W.3d at 880 (stating breach of standard

of care cannot be inferred from existence of injury alone because doctrine of res ipsa

11 loquitor does not generally apply in medical malpractice cases). Furthermore, Dr.

Elkousy’s remarks do not state how the bacteria was introduced into Sherman’s

wound during surgery or identify a specific act or omission by Dr. Elkousy or

Fondren that allowed the introduction of the bacteria that resulted in Sherman

developing a post-operative infection.

Accordingly, we conclude that Dr. Nirgiotis’s report does not represent a good

faith effort to comply with the statutory requirements because it does not specify

how Dr. Elkousy or Fondren breached the standard of care. We further conclude that

the report is insufficient as to causation because Dr. Nirgiotis does not adequately

link Sherman’s injury to a breach in the standard of care. Because Dr. Nirgiotis’s

report does not represent a good faith effort to comply with the statutory

requirements, the trial court abused its discretion by denying Dr. Elkousy’s and

Fondren’s motion to dismiss.6

We sustain Dr. Elkousy’s and Fondren’s second issue.

6 Having determined that the report was inadequate as to breach and causation, we do not need to address whether the report demonstrates that Dr. Nirgiotis is qualified to opine as to the standard of care and breach.

12 Conclusion

We reverse the trial court’s order denying Dr. Elkousy’s and Fondren’s

motion to dismiss, and we remand the cause to the trial court for further proceedings

consistent with this opinion.

Russell Lloyd Justice

Panel consists of Justices Keyes, Bland, and Lloyd.