Plaintiff Kimberly Wilson sued pain management physician Ishan Shanti, M.D. Ms. Wilson saw treatment for pain in her lower back and left leg. Dr. Shanti performed three sets of injections on Ms. Wilson. Each time, she received an injection on her right side and then would return a few days later for an injection on her left side. Ms. Wilson began to experience pain on her right side between the second and third set of injections. It intensified after the third set of injections.
Ms. Wilson designated Dr. Mark Barhorst as her expert. He wrote a report and testified that the third set of injections caused increased pain to Ms. Wilson's left side and introduced pain to her right side. During his deposition, he said that his opinion was largely based on Ms. Wilson telling him that the pain started after the third set of injections. He also claimed, without explanation, that his opinion would not be wrong if the pain started earlier. During her deposition, Ms. Wilson testified that the pain started after the second set of injections, contradicting her expert.
Dr. Shanti filed a motion to exclude Dr. Barhorst's opinion as unreliable because it was based on an erroneous misunderstanding of when the pain started. Dr. Barhorst prepared a supplemental report in which he stated that his original report and testimony were based on errors. He claimed that the revised facts did not change his opinions, but did not explain why. The trial court granted the motion to exclude Dr. Barhorst. Dr. Shanti then moved for summary judgment, which was also granted. Ms. Wilson's motion for new trial was overruled by operation of law. Ms. Wilson then appealed these three decisions of the trial court.
The COA reiterated that if an expert bases his opinion upon unreliable foundational data, any opinion drawn from that data is unreliable and no evidence. Dr. Barhorst repeatedly emphasized that a basis for his opinions was the belief that Ms. Wilson's pain started after the third set of injections. In his supplemental report, he attempted to correct the error by stating that the third set of injections was "the most proximate cause" of her pain. He did not provide a basis for this conclusion or explain why his ultimate opinion was the same, even though the underlying facts had materially changed. The trial court did not err in excluding Dr. Barhorst's opinions.
Because the trial court properly excluded the testimony of Dr. Barhorst, Ms. Wilson did not have any expert testimony. In a medical malpractice action, breach of the standard of care must be established through expert testimony. On appeal, she claimed that the affidavit of her treating physician, which Dr. Shanti had relied on in his motion, raised a fact issue as to causation. Because she did not raise that issue in the trial court, the appellate court could not consider it.
Finally, the Court noted that Ms. Wilson failed to brief her final issue as to the motion for new trial. Any error on that ground was waived.
See the opinion at Wilson v. Shanti.
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