Opinion issued April 9, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-01020-CV ——————————— JERRY M. KEEPERS, M.D., Appellant V. CONNIE BLESSETT, Appellee
On Appeal from the 113th District Court Harris County, Texas Trial Court Case No. 2018-22971
MEMORANDUM OPINION
Connie Blessett filed a health care liability claim against Dr. Jerry Keepers,
alleging that he negligently performed an epidural steroid injection that was meant
to minimize Blessett’s on-going pain following a car accident five months earlier.
Blessett’s petition alleged that Keepers injured her spinal cord during the injection procedure, which caused severe and permanent paralysis on the right side of her
body. As required by Chapter 74 of the Civil Practice and Remedies Code, Blessett
provided an expert report to support her claim.1 Keepers moved to dismiss
Blessett’s claim, challenging the adequacy of the report.2 The trial court denied his
motion, and this interlocutory appeal followed.3
In three issues, Keepers contends the trial court abused its discretion in
denying his motion because Blessett’s expert was not qualified to offer an expert
opinion on the standard of care or breach and because the expert’s opinions on the
elements of the standard of care, breach, and causation were conclusory.
We affirm.
Background
Blessett provided three expert reports in support of her health care liability
claims. All three reports were authored by Dr. Michael Dogali, a neurosurgeon
who, according to his curriculum vitae, has held past positions as a professor of
neurological surgery at the University of Southern California’s medical school, a
professor at the University of California, Irvine and chair of its neurological
surgery department, a director of New York University Medical Center’s
1 See TEX. CIV. PRAC. & REM. CODE § 74.351(a). 2 See id. § 74.351(b), (l). 3 See id. § 51.014(a)(9). 2 neurosurgery department, and a clinical instructor at Yale University Medical
Center.
Dogali’s expert reports provide the background facts in this case, and we
accept the factual statements in the reports for the limited purpose of this appeal.
See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (review of
Chapter 74 report is limited to four corners of report). Blessett’s medical records
are not before us.
Blessett was involved in a car accident in February 2016. When her neck,
shoulder, and back pain did not subside after several weeks, Blessett obtained an
MRI, which revealed disc herniations in her lower cervical spine. Blessett sought
pain management treatment from Keepers.
On June 21, 2016, Keepers performed an epidural steroid injection in
Blessett’s lower cervical spine, and Blessett later reported a reduction in pain. On
July 19, Keepers performed a second epidural steroid injection at the same spinal
location (C7–T1). Around noon the next day, Blessett went to St. Luke’s Medical
Center Emergency Department with complaints of extreme pain and paralysis on
her right side. An MRI revealed a lesion in the cervicothoracis spinal cord which
St. Luke’s noted as a possible “spinal cord injury secondary to needle
mispositioning.” Blessett continues to have severe and permanent paralysis on the
right side of her body more than one year later.
3 Blessett sued Keepers and provided an expert report from Dr. Michael
Dogali, who opined that Keepers was negligent in mispositioning the needle during
the July 19 epidural steroid injection, causing Blessett’s severe and permanent
injuries. Keepers moved to dismiss Blessett’s claim for failing to provide an
adequate expert report. See TEX. CIV. PRAC. & REM. CODE § 74.351(b) (providing
mechanism for dismissal of health care liability claims for failure to provide
adequate expert report). Blessett supplemented her report, Keepers again sought
dismissal, and the trial court denied his motion. Keepers appeals.
Motion to Dismiss
Keepers contends the trial court abused its discretion by denying his motion
to dismiss Blessett’s health care liability claims because (1) Dogali was not
qualified to opine on the standard of care or breach and (2) Dogali’s opinions on
the standard of care, breach, and causation were conclusory.
A. Standard of review
We review a trial court’s ruling on a motion to dismiss a health care liability
claim for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 142 (Tex. 2015) (per curiam). We “defer to the trial court’s factual
determinations if they are supported by evidence,” but we review its legal
determinations de novo. Id. “A trial court abuses its discretion if it rules without
reference to guiding rules or principles.” Id.
4 B. Expert report requirements
Under the Medical Liability Act, a plaintiff asserting health care liability
claims must timely serve each defendant physician and health care provider with
one or more expert reports and a curriculum vitae of each expert whose opinion is
offered to substantiate the merits of the claims. TEX. CIV. PRAC. & REM. CODE
§ 74.351(a), (i); see Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.—Houston
[1st Dist.] 2015, no pet.). The expert report must provide a “fair summary” of the
expert’s opinions regarding the (1) applicable standards of care, (2) manner in
which the care rendered by the physician or health care provider failed to meet the
standards, and (3) causal relationship between that failure and the injury, harm, or
damages claimed. TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6). “No particular
words or formality are required, but bare conclusions will not suffice.” Scoresby v.
Santillan, 346 S.W.3d 546, 556 (Tex. 2011). Instead, the report must explain the
basis of the expert’s statements and link the expert’s conclusions to the facts of the
case. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex. 2010).
For standard of care and breach, the expert report must explain what the
physician or health care provider should have done under the circumstances and
what the physician or health care provider did instead. Am. Transitional Care Ctrs.
of Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001).
5 For causation, the expert report must explain how and why the physician’s
or health care provider’s breach proximately caused the plaintiff’s injury.
Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 459–60
(Tex. 2017). Proximate cause has two components: (1) cause-in-fact and (2)
foreseeability. Id. at 460. A physician’s or health care provider’s breach was a
cause-in-fact of the plaintiff’s injury if the breach was a substantial factor in
bringing about the harm and, absent the breach (i.e., but for the breach), the harm
would not have occurred. Id. Even if the harm would not have occurred absent the
defendant’s breach, “the connection between the defendant and the plaintiff’s
injuries simply may be too attenuated” for the breach to qualify as a substantial
factor. Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (per
curiam) (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)).
A breach is not a substantial factor if it “does no more than furnish the condition
that makes the plaintiff’s injury possible.” Id. (quoting Union Pump, 898 S.W.2d at
776). A physician’s or health care provider’s breach is a foreseeable cause of the
plaintiff’s injury if a physician or health care provider of ordinary intelligence
would have anticipated the danger caused by the negligent act or omission. See
Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.—Houston [1st Dist.] 2006, pet.
denied).
6 The expert report is not required to prove the plaintiff’s case but only to
provide notice of the conduct forming the basis of the plaintiff’s claim. Gracy
Woods I Nursing Home v. Mahan, 520 S.W.3d 171, 189 (Tex. App.—Austin 2017,
no pet.). The report “need not anticipate or rebut all possible defensive theories that
may ultimately be presented” in the case. Owens v. Handyside, 478 S.W.3d 172,
187 (Tex. App.—Houston [1st Dist.] 2015, pet. denied). Nor must the report “rule
out every possible cause of the injury, harm, or damages claimed.” Baylor Med.
Ctr. at Waxahachie v. Wallace, 278 S.W.3d 552, 562 (Tex. App.—Dallas 2009, no
pet.).
In reviewing the adequacy of an expert report, a trial court may not consider
the expert’s credibility, the data relied upon by the expert, or the documents that
the expert failed to consider at this pre-discovery stage of the litigation. See
Mettauer v. Noble, 326 S.W.3d 685, 691 (Tex. App.—Houston [1st Dist.] 2010, no
pet.); Gonzalez v. Padilla, 485 S.W.3d 236, 245 (Tex. App.—El Paso 2016, no
pet.). Instead, the trial court must limit its review to the “four corners” of the expert
report and, when the question of adequacy hinges on the expert’s qualifications,
the “four corners” of the expert’s curriculum vitae. Mangin, 480 S.W.3d at 706.
The statute’s purpose is to rule out frivolous lawsuits at the onset of
litigation, it is not to determine the merits of the claim. Ross v. St. Luke’s Episcopal
7 Hosp., 462 S.W.3d 496, 502 (Tex. 2015); Mangin, 480 S.W.3d at 706. As we have
explained:
The requirement to serve an expert report arises at the outset of litigation and before the opportunity for the plaintiff to engage in significant discovery, including taking oral depositions of the defendants. As such, the statute itself contemplates that the amount and quality of evidence available at the time of drafting the expert reports will be less than that available at trial on the merits or even the summary-judgment stage.
Mangin, 480 S.W.3d at 713 (citations omitted).
If the plaintiff “fails to timely serve an expert report, then on the affected
health care provider’s motion the trial court must dismiss the pertinent health care
liability claim with prejudice and award attorney’s fees.” Baty v. Futrell, 543
S.W.3d 689, 692 (Tex. 2018) (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)).
“However, if the motion challenges the adequacy of an otherwise timely report, the
court may grant the motion ‘only if it appears to the court, after hearing, that the
report does not represent an objective good faith effort to comply with the [Act’s]
definition of an expert report.’” Baty, 543 S.W.3d at 692–93 (quoting TEX. CIV.
PRAC. & REM. CODE § 74.351(l)).
A report qualifies as an objective good faith effort if it provides information
sufficient to (1) inform the defendant of the specific conduct the plaintiff questions
and (2) provide a basis for the trial court to conclude that the plaintiff’s claims
have merit. Miller v. JSC Lake Highlands Operations, LP, 536 S.W.3d 510, 513
8 (Tex. 2017) (per curiam); Jelinek, 328 S.W.3d at 539; see Scoresby, 346 S.W.3d at
557 (defining report as meeting “minimal standard” of objective-good-faith
threshold if it “contains the opinion of an individual with expertise that the claim
has merit, and if the defendant’s conduct is implicated”). A report that contains
conclusory statements that do not put the defendant or the trial court on notice of
the conduct complained of fails to meet the threshold of an objective good faith
effort. Palacios, 46 S.W.3d at 880. The good-faith requirements of the statute have
been described as a “lenient standard,” “low threshold,” and “relatively low bar.”
See Scoresby, 346 S.W.3d at 549; Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex.
2012) (Hecht, J., concurring in part and dissenting in part); Baty, 543 S.W.3d at
698 (Johnson, J., dissenting).
C. Trial court did not err in concluding that the expert was qualified
In his first issue, Keepers contends that the trial court abused its discretion in
holding that Blessett’s expert is statutorily qualified to provide expert opinions on
the standard of care and breach.
Whether an expert witness is qualified to offer an expert opinion lies within
the sound discretion of the trial court. Cornejo v. Hilgers, 446 S.W.3d 113, 121
(Tex. App.—Houston [1st Dist.] 2014, pet. denied). The expert’s qualifications
must appear in the four corners of the expert report or its accompanying curriculum
vitae. Id. In a health care liability suit, a physician may qualify as an expert witness
9 on the issue of whether the defendant physician departed from accepted standards
of medical care only if the physician: (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. TEX. CIV. PRAC. & REM. CODE
§ 74.401(a); see id. § 74.351(r)(5)(A). Keepers focuses on the third requirement,
arguing that the “primary issue in this appeal is whether or not there is anything
within” Dogali’s reports “that would indicate Dr. Dogali is actually qualified, via
training or experience, to opine on the care provided.”
Keepers acknowledges that Dogali is a board-certified neurosurgeon and that
his reports state he has performed “countless surgeries and procedures that
involved accessing the epidural space” and is familiar with procedures “similar to
and more complex than the procedure at issue” here. Nonetheless, Keepers
maintains that Dogali’s reports are lacking because they do “not explain if all
epidural access is the same or even if it routinely uses the same instrumentation,
such as a needle.” In Keeper’s view, the omission requires an inference regarding
whether Dogali’s “familiarity with any of the noted procedures translates to
familiarity with the mechanism of injury” claimed in Blessett’s petition: accessing
10 epidural space with a needle. In other words, according to Keepers, Dogali’s
assertions that he is familiar with similar procedures and has, himself, accessed
patients’ epidural spaces “countless” times as a neurosurgeon are not specific
enough to convey training or experience accessing epidural spaces with a needle to
demonstrate that Dogali is qualified through his training or experience to provide
expert opinions in this case in which Blessett’s epidural space was accessed with a
needle.
Keepers’s argument relies on an overly narrow reading of Dogali’s reports,
parsing certain words without adequate consideration of the reports as a whole. See
Baty, 543 S.W.3d at 694 (stating that “courts must view the report in its entirety,
rather than isolating specific portions or sections, to determine whether it includes”
necessary information). In his reports, Dogali discusses the steps in an epidural
injection procedure, the in-procedure indications that a needle has been properly
placed, and the potential harms if it has not. For example, he states that “needle
placement in the epidural space” must proceed “extremely carefully and [be]
continuously observed so as to ensure the needle does not penetrate the dura and/or
the spinal cord during injection.” Dogali states that he is “personally very familiar”
with these topics, including the standard of care and breach of that standard,
“having performed several hundred accesses to the epidural space for the injection
of drugs” and other procedures. The only logical reading of these statements is that
11 Dogali—a board certified neurosurgeon—has experience, through hundreds of
medical procedures, accessing patients’ epidural spaces with needles.
Keepers’s challenge to Dogali’s qualifications is specific: whether his report
indicates that he has training or experience accessing epidural spaces with a needle.
Dogali’s reports demonstrate that he does. The trial court did not abuse its
discretion in denying Keepers’s dismissal motion to the extent it challenged
Dogali’s qualifications.
We overrule Keepers’s first issue.
D. Trial court did not err in concluding that the expert’s opinions were not conclusory
In his second and third issues, Keepers contends that Dogali’s expert reports
are inadequate because they are conclusory on the issues of the standard of care,
breach, and causation.
1. The standard of care and breach
As to the standard of care and breach, Keepers argues that Dogali merely
noted a bad outcome and then impermissibly asserted that Keepers’s failure to
avoid the bad outcome was a breach. Keepers’s argument tracks that made in
American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873
(Tex. 2001).
In Palacios, a patient in a rehabilitation facility required restraints while
sleeping to avoid falls from his bed. Id. at 875. One evening, the nursing staff
12 observed he was wearing his bed restraints, yet, ten minutes later, the patient fell
from his bed and was injured. Id. at 876. The plaintiff’s expert’s report stated that
the patient “had a habit of trying to undo his restraints” and opined that
“precautions to prevent his fall were not properly utilized.” Id. at 879 (emphasis
added). The defendant challenged the expert report, arguing that it failed to
identify the precautions that should have been taken.
The Court held that, while one might infer that the expert thought the staff
should have tied the bed restraints more securely, health care liability experts
cannot rely on inference when stating an opinion on the standard of care and
breach. See id. at 880. Instead, “the report must inform the defendant of the
specific conduct the plaintiff has called into question.” Id. at 879. The statement
that “precautions to prevent [the patient’s] fall were not properly utilized” was not
a statement of a standard of care because it did not tell the defendant what the
expert believed the standard required the defendant to have done differently. Id.
Maybe the expert thought the defendant should have monitored the patient more
closely, restrained him more securely, “or done something else entirely.” Id. at
880. Because the report did not identify the standard and breach, the Court held the
expert report was conclusory and subject to dismissal. Id. Merely identifying a bad
outcome and a failure to avoid a bad outcome is not an adequate identification of a
13 standard of care and breach. See id.; see Baty, 543 S.W.3d at 696 (stating that
expert cannot equate medical negligence with bad or unsuccessful result).
Here, Keepers’s report is more aligned with the expert report that was held
adequate in Baty. There, the defendant argued that the plaintiff’s claims should be
dismissed because the expert report was conclusory, but the Texas Supreme Court
held the report was adequate because it informed the defendant of the expert’s
opinions on what the defendant should have done and what the defendant did
instead. Baty, 543 S.W.3d at 697. In doing so, the Court recognized that not every
medical negligence case involves complex standards of care. At times, the standard
of care can be “fairly basic.” Id. at 694.
In Baty, a certified registered nurse anesthetist administered anesthesia in
advance of cataract surgery. The procedure involved injecting anesthesia into the
space behind the globe of the eye. The plaintiff alleged that the nurse anesthetist
negligently inserted the needle into her optic nerve, causing permanent nerve
damage and vision loss. Id. at 690. For such a procedure, according to the
plaintiff’s expert, the standard of care was to inject the anesthesia but to not “stick
the optic nerve with the anesthesia needle” in the process. Id. at 694. The breach or
failure to meet that standard, likewise, was simply stated as sticking the nearby
optic nerve with the needle.
14 The Court held that the expert report did not require one to infer what the
anesthetist should have done differently and, thus, was not conclusory. Id. at 695.
The standard of care and breach identified by the expert “expressly referenced the
‘specific conduct the plaintiff has called into question.’” Id. (quoting Palacios, 46
S.W.3d at 879). Additional detail was not required in the expert’s report. Id. at 697.
In holding that the expert report met the requirements of Section 74.351, the Court
distinguished Palacios and the conclusory expert report at issue there:
[The expert] opines that [the anesthetist] breached the standard by “sticking [the optic nerve] with the retrobulbar needle” “during the administration of the retrobulbar block.” If “sticking [the optic nerve] with the retrobulbar needle” is a breach of the standard of care— which, in turn, requires administering the block in the proper manner—then the “proper manner” necessarily encompasses not sticking the optic nerve with the retrobulbar needle. Unlike Palacios, in which we refused to infer from the report that the hospital’s untaken “precautions to prevent [the patient’s] fall” included tying the restraints to the bed more securely, here we need not infer anything; the report expressly references the “specific conduct the plaintiff has called into question.”
Id. at 695.
This case, likewise, involves a “fairly basic” standard of care for an epidural
steroid injection. See id. at 694. Dogali opined that the standard of care is to inject
into the epidural space while ensuring that the needle is properly placed so that it
15 does not penetrate the dura,4 the spinal cord, or the intradural space, which could
damage the spinal cord. Dogali stated that proper needle positioning can be aided
through use of fluoroscope, in which technology allows a visualization of the
needle location and site of steroid release. Dogali then opined that Keepers
breached the standard of care by failing to ensure that the needle was in the
epidural space and by, instead, penetrating the dura, thereby injecting the steroid
solution into Blessett’s spinal cord and causing injury.
These opinions meet the standard for nonconclusory expert opinions in an
adequate expert report, as discussed in Baty. Just like the nurse anesthetist was
adequately informed of the expert’s opinion that she was supposed to inject
anesthesia into the open space without sticking the nearby optic nerve and that she
breached the standard of care by sticking the optic nerve, Keepers, here, was
adequately informed of Dogali’s expert opinion that he was supposed to inject the
steroid solution into the epidural space without penetrating the dura and that he
breached the standard of care by penetrating the dura. “Additional detail is simply
not required at this stage of the proceeding.” Id. at 697.
We overrule Keepers’s second issue. We turn now to causation.
4 Dura is a thin protective membrane that covers the spinal cord. See Dura mater, HARVARD MEDICAL SCHOOL MEDICAL DICTIONARY, Harvard Health Publishing, https://www.health.harvard.edu/d-through-i. 16 2. Causation
In his third issue, Keepers contends that Dogali’s causation opinion is
conclusory and impermissibly relies on proximity in time to infer a causal
connection between Keepers’s injection of steroid solution at Blessett’s C7-T1
spinal location on July 19 and the lesion observed by MRI at the same spinal
location on July 20.
Dogali’s report states that Blessett reported to the emergency room the day
after her epidural steroid injection and that her clinical findings “were consistent
with an injury to her spinal cord at the level where Dr. Keepers performed the
[epidural steroid injection] procedure the previous day.” The radiology report
analyzing the emergency room MRI that day stated that Blessett’s lesion “could
reflect spinal cord injury secondary to needle malpositioning” from the procedure
the day before. Dogali’s report includes his expert opinion, formed after review of
Blessett’s medical records, that, to a reasonable degree of medical certainty, the
lesion was caused by the needle Keepers inserted incorrectly. Specifically, the
“mechanism of injury was the direct penetration of the spinal cord by the Touhy
needle inserted by Dr. Keepers and the secondary volumetric and toxic effects of
the injection of the steroid containing liquid into the spinal neural tissue, which
resulted in neuronal death at the level of injection, and the ante and retrograde
17 degeneration of the spinal cord from the medulla to the thoracic level, as seen on
the MRI and confirmed by the patient’s neurological deficits.”
Dogali also stated in his report that a lesion was visible on the post-injection
MRI, the type of lesion observed was consistent with an incident of needle
malpositioning, the lesion was at the same spinal cord location as the injection the
day before, the lesion and resulting impairment were inconsistent with Keepers’s
preoperative assessment that Blessett was not demonstrating any deficits before the
injection, the lesion was consistent with the deficits Blessett demonstrated the day
after the injection, and alternative potential causes of the lesion were considered
and rejected because they did “not fit the clinical picture or history documented in
the medical records.” Dogali opined that to a reasonable degree of medical
certainty Keepers malpositioned the needle during the epidural steroid injection
procedure, penetrated the dura, and, in doing so, caused Blessett’s injuries.
Keepers argues that Dogali relies on “timing alone” to establish the causal
link. But Dogali does more. He states that Blessett’s medical history does not
reveal any other event that might cause these injuries, which are consistent with a
needle-malpositioning event. Other possible causes were determined to be
inconsistent with Blessett’s clinical presentment. And the rapid development of
deficits linked to the exact location of the injection, without any other injury event
18 or medical development in the short span of time, is consistent with the injection
being the source of the lesion.
Keepers also argues that Dogali failed to provide an “explanation as to how
the alleged breach of the standard of care, needle malpositioning, actually caused a
spinal lesion.” We disagree. Before the procedure, Keepers noted that Blessett had
no deficits. Keepers then injected the steroid. The next day—with no indication in
her records of any intervening event—Blessett had physical and neurological
deficits consistent with a needle malpositioned into the dura. Dogali explained in
his report that the needle must not be allowed to penetrate the dura because it will
damage the spinal cord. He stated that injecting a needle beyond the epidural space
and into the dura is consistent with Blessett’s clinical findings the day after the
injection, consistent with the lesion noted on the MRI that day, and consistent with
Blessett’s assessed deficits thereafter. Dogali’s expert report provides the “how and
why” the alleged breach of the standard of care proximately caused Blessett’s
permanent injuries, in Dogali’s medical opinion: Keepers penetrated the dura with
the needle, and injection of the steroid solution into the dura damaged the spinal
cord, created the lesion, and left Blessett with permanent damage. See Jelinek, 328
S.W.3d at 540 (requiring expert report to convey how and why breached caused
injury).
19 At this pre-discovery stage of her suit, Blessett did not have the burden to
prove a causal link by a preponderance of the evidence to the satisfaction of a
factfinder or to rule out all other possible causes of her injury. See Puppala v.
Perry, 564 S.W.3d 190, 202 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (“At
this expert-report stage, an expert report does not have to meet the same
requirements as the evidence offered in a summary-judgment proceeding or at
trial.”) (internal quotation omitted). Dogali’s expert report provided an explanation
of the causal relationship between the needle malpositioning and the injury, harm,
and damages claimed. That a competing expert might dispute the causal link or the
ultimate factfinder might reject the expert’s conclusions is immaterial to whether
Blessett met her requirements under Section 74.351. See id. Dogali’s causation
opinion is not conclusory. See Baty, 543 S.W.3d at 698 (rejecting defendant’s
contention that expert’s causation opinion was conclusory).
We overrule Keepers’s third issue.
Conclusion
We conclude the trial court did not abuse its discretion in denying Keepers’s
dismissal motion. We therefore affirm.
Sarah Beth Landau Justice
Panel consists of Justices Keyes, Higley, and Landau.