1st COA—Wilson v. Shanti, summary judgment after expert’s opinions excluded

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.

1st COA--Doctors Hospital v. Hernandez

In this case, Doctors Hospital and Nurse Price challenged the trial court's denial of their motion to dismiss and objections to Plaintiff's expert reports.  This undeniably tragic case arose from the death of Cynthia Hernandez just eight hours after delivering her daughter.  Plaintiffs filed the expert reports of Harold Miller, M.D., an ob-gyn, and Traci McManaman-Bridges, a registered nurse.

Defendants first claimed that Dr. Miller was not qualified to serve as an expert because his experience was all in teaching hospitals, such as Ben Taub Hospital and not in smaller, tertiary care hospitals.  The COA rejected this claim, sating that the relevant inquiry must be guided by CPRC 74.402, which states:

(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.

The COA held that Dr. Miller was qualified as he was a board certified ob-gyn in practice since 1967 with extensive practical and teaching experience.  Defendants also claimed that Dr. Miller was not qualified to opine as to the conduct of the nurses.  The COA also rejected this argument.  Dr. Miller stated that he had experienced working with nurses and was familiar with the standard of care for nurses.

In their second point of error, Defendants claimed that Dr. Miller's expert report was insufficient because it contradicted the medical records.  The COA reiterated the rule that only the four corners of the expert report can be considered in a motion to dismiss.  Finally, Defendants claimed that the report was conclusory as to causation.  The COA held that the report sufficiently linked the conclusions to the facts of the case.  The trial court's decision was affirmed.

See the opinion at Doctors Hospital v. Hernandez

1st COA--Tien v. Alappatt; expert report; disclosure of risks

In this memorandum opinion, the COA held that Tien was required to file an expert report, despite his claim that no report was required because his claim cetnered on disclosure of the risks of a surgical procedure. 

Tien filed suit against Dr. Alappatt, claiming that Dr. Alapapatt should have disclosed the risks of a pan-retinal photocoagulation (PRP) on his eyes.  Tien filed an expert report.  Dr. Alappatt moved to dismiss because the report was insufficient.  The trial court agreed and dismissed the case with prejudice. 

On appeal, Tien did not argue that the report was sufficient; instead, he claimed that he did not need to file a report because of the nature of his claims.  He said that because the Texas Medical Board required certain disclosures that were not made, no expert report was required.  The COA referred to Supreme Court authority that has held that an action alleging a physician's failure to inform a patient fully of the risks of surgery is a negligence claim governed by the procedural requirements of the Medical Liability Act.  Because he failed to file a sufficient expert report, the trial court properly dismissed Tien's claim. 

See the opinion at Tien v. Alappatt.

1st COA--Mettauer v. Noble et al., objections to expert report

In this wrongful death case, Dr. Mettauer objected to the timely-filed expert report of Dr. Joseph Carey.  Dr. Mettauer claimed that Dr. Carey was not a qualified expert.  He claimed that because Dr. Carey did not perform thoracoscopic cardiac ablation, the procedure at issue in the case, he is not qualified as an expert. Dr. Mettauer also claimed that the Dr. Carey based his conclusions on assumptions or mistakes and did not provide the necessary causal facts to link Dr. Mettauer's procedure and the death.  After the initial hearing, Dr. Carey amended his report, but Dr. Mettauer lodged the same objections.  The objections were overruled and this appeal followed.

Dr. Mettauer's first challenge to Dr. Carey's expert report centered on misstatements and factual errors in the report.  In support of his position, Dr. Mettauer's counsel showed the trial court additional medical records, a PowerPoint presentation on the use of the surgical system, and Dr. Mettauer's answers to interrogatories.  Dr. Mettauer argued that the trial court should ave been allowed to consider this evidence and to take judicial notice of specific medical facts.  The appellate court denied this challenge, holding

• The appellate court may not engage in a review of the documents not relied upon by the expert.
• The trial court's role is that of a gatekeeper, not a factfinder.
• Extraneous information, which was not relied upon by an expert in making his determinations and which does not appear in the report, may not be reviewed in determining the sufficiency of an expert report.

The trial court then considered the challenge to Dr. Carey's qualifications.  Dr. Carey stated in his report that although he had not performed a  thoracoscpic cardiac ablation, he had done thorascopic procedures and he had done open cardiac ablations.  The appellate court held that this was sufficient to show that Dr. Carey had knowledge of the accepted standards of care for a  thoracoscpic cardiac ablation.

Plaintiffs sought sanctions against Dr. Mettauer for filing a frivolous appeal.  The Court noted that Dr. Mettauer's arguments regarding extraneous information were contrary to overwhelming weigh of authority.  However, it noted that his reasoning was based on prior case law (Baptist Hospitals of Southeast Texas v. Carter, 2008 WL 2917109 at *3, Tex. App.--Beaumont 2008, no pet. mem. op.) and that the more recent case that the Court relied on (Christus Health Se. Tex v. Broussard, 306 S.W.3d 934, 939 Tex. App.--Beaumont 2010, no pet.)  was issued only day before the notice of appeal was filed.  The Court did not award sanctions.

See the opinion at Mettauer v. Noble.