Keo, Maly v. Ban Vu, M.D., Bich Ngoc, Blue Jade Beauty Center and Qui Phi Beauty Salon

Opinion issued April 25, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-00-00580-CV

MALY KEO, Appellant

V.

BAN VU, M.D.; BICH NGOC; BLUE JADE BEAUTY CENTER; AND QUI

PHI BEAUTY SALON, Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 98-21370

O P I N I O N This is an appeal from a summary judgment rendered against appellant, Maly

Keo, in a negligence and medical malpractice case. In a single issue, Keo argues that

the trial court erred when it (1) excluded the testimony of Keo's expert witness on the

ground he was not qualified to render an opinion in this case under Texas Rule of

Evidence 702 and the case law interpreting it and (2) improperly considered the

plaintiff's credibility when it determined the expert's report (which was based on

facts the plaintiff provided to the expert) constituted any evidence. We reverse the

trial court's judgment and remand the cause.

Background

Appellee Ban Vu is a physician in Houston who performs cosmetic surgery.

Dr. Vu advertises his services in conjunction with the beauty services his wife,

appellee Bich Ngoc, provides at salons she owns: appellee Blue Jade Beauty Center

in Houston and appellee Qui Phi Beauty Salon in St. Petersburg, Florida. Both Blue

Jade and Qui Phi refer patients to Dr. Vu and perform intake services for him. Dr. Vu

performs surgery in his office, which is located within the Blue Jade Beauty Center

in Houston.

On March 22, 1995, Keo traveled to Houston from her home in Chicago for

surgery after an employee at one of Bich Ngoc's beauty centers suggested she needed

cosmetic surgery. When she arrived, it was Bich Ngoc who advised Keo about what

procedures she should have, suggested a new nose shape for Keo, shaped a prosthesis

that Dr. Vu ultimately implanted in Keo's nose, provided preoperative counseling,

and set the price for the surgery.

When Keo met with Dr. Vu before the surgery, she informed Dr. Vu she had

a prior injection of silicone to her nose bridge, lip, and chin. Dr. Vu informed her that

the prior silicone injection could cause additional problems with the surgery,

including a propensity to develop an infection. Dr. Vu also explained the other risks

associated with the surgery. Keo gave her informed consent in both English and

Vietnamese.

The next day, Dr. Vu performed the initial surgery on Keo. He first removed

extra skin and fat from Keo's eyelids to alter the appearance of her eyelids and eyes. (1)

He then placed a cosmetic implant in her nose. Keo was given postoperative

instructions, which included a follow-up appointment in one week. She did not return

for the follow-up appointment. Instead, she returned to her home in Chicago. When

Keo telephoned Dr. Vu for more medication, Bich Ngoc returned her call and

provided Keo with additional postoperative counseling.

In the year following the eyelid and nose implant surgery, Keo moved from

Chicago to St. Petersburg. Some time during that year, the prosthesis Dr. Vu

implanted in Keo's nose moved. In April 1996, she went to Qui Phi in St. Petersburg.

Qui Phi referred Keo back to Dr. Vu for a second surgery.

On May 4, 1996, Dr. Vu performed a second surgery on Keo. (2) He removed the

prosthesis, modified its shape, and reinserted it into Keo's nose. Keo contends she

had an active sinus and nasal infection when Dr. Vu performed the second surgery

and that he did not arrange for postoperative care for Keo with physicians in St.

Petersburg. Dr. Vu, however, testified he instructed Keo to return for an office visit

in one week, but she did not do so.

After she returned to Florida, Keo sought care from several physicians because

of complications arising from the second surgery. Within a month after the second

surgery, Keo had seen five or six different physicians in an attempt to alleviate pain

and correct the problems. However, the infection that she argues was present when

Dr. Vu performed the second surgery had worsened to the point that another

physician, Dr. Howery, had to perform a third surgery to remove the prosthetic tip.

Keo filed a lawsuit for negligence and medical malpractice against Dr. Vu and

negligence against Bich Ngoc, Blue Jade, and Qui Phi. In support of her claims, Keo

provided an expert report and deposition testimony from George Gary Card, M.D.,

a surgeon who is board certified in otolaryngology.

Dr. Vu sought summary judgment under Texas Rule of Civil Procedure 166a(c)

and 166a(i) because Dr. Card was not qualified to testify under Texas Rule of

Evidence 702 and the case law interpreting the rule. The trial court rendered a take-nothing no-evidence summary judgment on the grounds that Dr. Card was not

qualified to testify under the requirements of Rule 702 and there was no scientifically

reliable evidence supporting Keo's causes of action.

Standard of Review

Whether an Expert is Qualified

A two-part test governs whether expert testimony is admissible: (1) the expert

must be qualified and (2) the testimony must be relevant and be based on a reliable

foundation. E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 556 (Tex.

1995). The trial court makes the initial determination whether the expert and the

proffered testimony meet these requirements. Robinson , 923 S.W.2d at 556 . The trial

court has broad discretion to determine admissibility, and we will reverse only if there

is an abuse of that discretion. Robinson , 923 S.W.2d at 558 ; Harris County Hosp.

Dist. v. Estrada , 872 S.W.2d 759, 762 (Tex. App.--Houston [1st Dist.] 1993, writ

denied).

A reviewing court cannot conclude that a trial court abused its discretion if, in

the same circumstances, it would have ruled differently or if the trial court committed

a mere error in judgment. Robinson , 923 S.W.2d at 558 . The test is not whether the

facts present an appropriate case for the trial court's action in the opinion of the

reviewing court. Id. We will gauge an abuse of discretion by whether the trial court

acted without reference to any guiding rules or principles. Id. Thus, a trial court

enjoys wide latitude in determining whether expert testimony is admissible. Harvey

Brown, Procedural Issues Under Daubert, 36 Hous. L. Rev. 1133 , 1159 (1999).

However, when there is proof of a physician's expertise in the particular areas

involved in the case, the trial court abuses its discretion by refusing to qualify the

physician as an expert witness. Blan v. Ali , 7 S.W.3d 741, 747 (Tex. App.--Houston

[14th Dist.] 1999, no pet.); Spivey v. James , 1 S.W.3d 380, 385 (Tex.

App.--Texarkana 1999, pet. denied).

No-Evidence-Summary-Judgment Standard of Review

We review a no-evidence summary judgment by construing the record in the

light most favorable to the nonmovant and disregarding all contrary evidence and

inferences. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp. , 988 S.W.2d

746, 748 (Tex.1999); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian

Corp ., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). A

no-evidence summary judgment is improper if the nonmovant brings forth more than

a scintilla of evidence to raise a genuine issue of material fact. See Tex. R. Civ. P.

166a(i); KPMG Peat Marwick , 988 S.W.2d at 748 ; Greathouse v. Alvin Indep. Sch.

Dist. , 17 S.W.3d 419, 423 (Tex. App.--Houston [1st Dist.] 2000, no pet.).

When, as here, the summary judgment states the ground or grounds on which

the trial court based its decision to render summary judgment, we will affirm the

summary judgment if one of those grounds is meritorious. See State Farm Fire &

Cas. Co. v. S.S. , 858 S.W.2d 374, 380 (Tex. 1993); State Farm Mut. Auto. Ins. Co. v.

Nguyen , 920 S.W.2d 409, 410 (Tex. App.--Houston [1st Dist.] 1996, no writ). The

summary judgment in this appeal states that the grounds on which summary judgment

was based is that Dr. Card was not qualified as an expert under Rule 702 and that

there was "no scientifically reliable evidence" to support Keo's negligence claims.

Therefore, we review whether the trial court abused its discretion when it determined:

(1) Dr. Card was not qualified under Rule 702 to provide expert testimony and (2) Dr.

Card's testimony was not "scientifically reliable evidence." We then look to whether

the no-evidence summary judgment was proper.

Was Dr. Card Qualified?

In a negligence case, the negligent act must be the proximate cause of the

injury. Union Pump Co. v. Allbritton , 898 S.W.2d 773, 775 (Tex. 1995). To establish

causation in a personal-injury case, a plaintiff must prove the defendant's conduct

caused an event and that event caused the plaintiff to suffer compensable damages.

See Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995). The causal

link between the event on which suit is based and the plaintiff's injuries must be

shown by competent evidence. Morgan v. Compugraphic Corp. , 675 S.W.2d 729,

732 (Tex. 1984). A jury may decide the required causal nexus between the event on

which suit is based and the plaintiff's injuries when (1) general experience and

common sense will enable a layperson to fairly determine the causal nexus, (2) expert

testimony establishes a traceable chain of causation from injuries back to the event,

or (3) expert testimony shows a probable-cause nexus. Weidner v. Sanchez , 14

S.W.3d 353, 370 (Tex. App.-- Houston [14th Dist.] 2000, no pet.); Blankenship v.

Mirick , 984 S.W.2d 771, 775 (Tex. App.--Waco 1999, pet. denied).

In deciding if an expert is qualified, trial courts "must ensure that those who

purport to be experts truly have expertise concerning the actual subject about which

they are offering an opinion." Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d

713, 719 (Tex. 1998) (quoting Broders v. Heise , 924 S.W.2d 148, 152 (Tex. 1996)).

Texas Rule of Evidence 702 permits a witness who is qualified as an expert by

knowledge, skill, experience, training, or education to testify on scientific, technical,

or other specialized subjects if the testimony would assist the trier of fact in

understanding the evidence or determining a fact issue. Whether an expert is

qualified is, under Texas Rule of Evidence 104(a), a preliminary question to be

decided by the trial court. "[T]he party offering the expert's testimony bears the

burden to prove that the witness is qualified under [Rule] 702." Gammill , 972

S.W.2d at 718 ; Broders , 924 S.W.2d at 151 . The offering party must demonstrate

that the witness possesses special knowledge as to the very matter on which the

witness proposes to give an opinion. Gammill , 972 S.W.2d at 718 ; Broders , 924

S.W.2d at 152-53 . The trial court's acceptance of a witness's qualifications as an

expert is reviewable for an abuse of discretion. Gammill , 972 S.W.2d at 718-19 ;

Broders , 924 S.W.2d at 151 .

In Broders , the issue was whether the trial court abused its discretion in

excluding the testimony of an emergency physician who opined that three defendant

emergency physicians and the defendant hospital caused a patient's death by failing

to diagnose plaintiff's head injury. 924 S.W.2d at 149 . The supreme court held that

the district court did not abuse its discretion in excluding the opinion of the

plaintiff's expert regarding causation because, although the expert plainly had greater

knowledge of medicine generally than a lay person, he did not have specialized

knowledge on the precise subject of causation. Id. at 153-54 . The court based its

decision on the increasingly specialized and technical nature of medicine, saying,

"there is no validity, if there ever was, to the notion that every licensed medical

doctor should be automatically qualified to testify as an expert on every medical

question." Id. at 152 . The court also observed that:

[w]hen a party can show that a subject is substantially developed in

more than one field, testimony can come from a qualified expert in any

of those fields. Porter v. Puryear , 153 Tex. 82 , 262 S.W.2d 933, 936

(Tex. 1953). See also Hersh v. Hendley , 626 S.W.2d 151, 154-55 (Tex.

App.--Fort Worth 1981, no writ) (orthopedic surgeon could testify in

suit against podiatrist on the standard of care for podiatric surgery since

it "was common throughout the medical profession.")

Id. at 154 .

Courts of appeals have also recognized that an expert witness need not be a

specialist in the particular branch of the medical profession for which the testimony

is offered. See Hernandez v. Altenberg , 904 S.W.2d 734, 738 (Tex. App.--San

Antonio 1995, writ denied); Simpson v. Glenn , 537 S.W.2d 114, 116 (Tex. Civ.

App.--Amarillo 1976, writ ref'd n.r.e.). Indeed, trial courts may qualify a medical

witness of a different specialty to testify if the witness has practical knowledge of

what is usually and customarily done by other practitioners under circumstances

similar to those confronting the malpractice defendant. Blan , 7 S.W.3d at 745 ; see

Marling v. Maillard , 826 S.W.2d 735, 740 (Tex. App.--Houston [14 th Dist.] 1992,

no writ) (citing Bilderback v. Priestley , 709 S.W.2d 736, 740 (Tex. App.--San

Antonio 1986, writ ref'd n.r.e.)). For example, an orthopedic surgeon is qualified to

testify as to the standard of care for a radiologist because the two professions work

closely together and their specialties are intertwined. See Silvas v. Ghiatas , 954

S.W.2d 50, 54 (Tex. App.--San Antonio 1997, writ denied). Likewise, a general

surgeon was permitted to testify regarding the standard of care for postoperative

procedures performed by a gynecologist because postoperative procedures are

common to both fields. See Simpson , 537 S.W.2d at 116-18 . In contrast, a

pediatrician who admitted he knew little about gynecological matters was not

permitted to testify against an obstetrician/gynecologist about postsurgical pain in a

patient's pubic area. See Roberson v. Factor , 583 S.W.2d 818, 821 (Tex. Civ.

App.--Dallas 1979, writ ref'd n.r.e.). Accordingly, the law is that if the subject

matter is common to and equally recognized and developed in all fields of practice,

any physician familiar with the subject may testify as to the standard of care. See

Blan , 7 S.W.2d at 745-46; see, e.g. , Hersh v. Hendley , 626 S.W.2d 151, 154 (Tex.

Civ. App.-- Fort Worth 1981, no writ) (taking medical history, discharging patient);

Garza v. Keillor , 623 S.W.2d 669, 671 (Tex. Civ. App.--Houston [14 th Dist.] 1981,

writ ref'd n.r.e.) (infection process); Sears v. Cooper , 574 S.W.2d 612, 615 (Tex. Civ.

App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.) (use of diuretic).

In this case, Keo offered the testimony of Dr. Card in support of her claims of

negligence against Dr. Vu. Dr. Card is board certified in otolaryngology. The

evidence shows that Dr. Card practices ear and throat surgery at the Houston Ear,

Nose, and Throat Clinic, where he is a partner. He received his doctor of medicine

from Baylor College of Medicine in 1971. He then did an internship at Baylor-affiliated hospitals before serving two years as a flight surgeon in the United States

Air Force. After being discharged from active duty, Dr. Card did a residency in

general surgery with Dr. Michael DeBakey. He completed his residency in

otorhinolaryngology at a Baylor-affiliated hospital.

After completing his training, Dr. Card taught otolaryngology at Baylor

College of Medicine from 1978 until 1996. He served as a volunteer teacher in

otolaryngology with the University of Texas Family Practice Residency Program

from 1984 to the present. In the early years of his practice, Dr. Card performed

rhinoplasties, the same surgical procedure Dr. Vu performed on Keo. He currently

practices general otolaryngology, which "includes reconstructive ear surgery, sinus

surgery, cancer surgery, laryngeal, throat surgery, vocal cord surgery, . . . [and] [a]ny

medical surgical condition in the head and neck area other than cosmetic surgery."

He has been board certified in otolaryngology since 1978. He performs surgery every

week.

Keo's complaints against Dr. Vu relate to surgical practices employed

generally, such as lack of preoperative and postoperative counseling and care. In

addition, she contends Dr. Vu (1) performed the second operation when Keo had an

active infection and (2) did not appropriately treat her postoperative infection. Unlike

the emergency physician in Broders , this record evidences that operative procedures

generally and the infection process related to surgery on the head in particular are

within Dr. Card's expertise. That Dr. Card does not currently perform rhinoplasties

or other cosmetic surgery does not alone render him unqualified to assert an opinion

regarding the standard of care for surgery on the head and neck generally or to assert

an opinion regarding issues that are common to all surgeries, including the adequacy

of preoperative and postoperative counseling and the treatment of postoperative

infections. (3) This is especially true in light of the evidence that he regularly performs

surgery on the head and neck. Because there is proof that Dr. Card had expertise and

actual experience regarding the specific issues of the standard of care for head and

neck surgeries and the standard of care for surgical procedures in general, we hold the

trial court abused its discretion when it excluded his expert testimony on the ground

he was not qualified.

Was Dr. Card's Testimony "Scientifically Reliable Evidence?"

In their motion, the appellees also argued Dr. Card's testimony was inherently

unreliable and insufficient evidence of causation because (1) Dr. Card relied on Keo's

testimony that her nose was infected before the second surgery, that Keo's testimony

was not credible, and there was no objective proof that Keo's nose was infected as

she said it was and (2) Dr. Card did not cite to any studies or literature in forming his

opinion.

Standard of Review

An expert may testify on scientific, technical, or other specialized subjects if

the testimony would assist the fact finder in understanding the evidence or

determining a fact issue. See Tex. R. Evid. 702. To assist the fact finder, the

proposed expert testimony must be relevant and reliable. Gammill , 972 S.W.2d at

720 . When the expert's underlying scientific technique or principle is unreliable, the

expert's opinion is no more than subjective belief or unsupported speculation and is

inadmissible. Id. ; Robinson , 923 S.W.2d at 557 . Whether an expert's testimony is reliable is a preliminary question for the trial

court. See Tex. R. Evid. 104(a); Gammill , 972 S.W.2d at 718 . As we discussed

above, the expert must possess "special knowledge as to the very matter on which he

proposes to give an opinion." See Gammill , 972 S.W.2d at 718 . Although the factors

the trial court may consider in making this determination will differ in each case,

some factors include, but are not limited to, (1) the extent to which the theory has

been tested, (2) the extent to which the technique relies on the expert's subjective

interpretation, (3) whether the theory has been subject to peer review and/or

publication; (4) the technique's potential rate of error, (5) whether the underlying

theory or technique has been generally accepted as valid by the relevant scientific

community, and (6) the nonjudicial uses that have been made of the theory or

technique. Id. at 720 .

The trial court is not to determine whether the expert's conclusions are correct,

but only whether the analysis used to reach them is reliable. Id. at 728 . An expert's

testimony can be unreliable even when the underlying data is sound if the expert

draws conclusions from that data based on flawed methodology. Merrell Dow

Pharmaceuticals, Inc. v. Havner , 953 S.W.2d 706, 721-29 (Tex. 1997). There also

may be "simply too great an analytical gap between the data and the opinion

proffered" for the opinion to be reliable. Gammill , 972 S.W.2d at 726 . We review

the ruling excluding an expert's testimony for abuse of discretion. Id. at 718-19 .

Analysis

The appellees argued in the trial court that Dr. Card's opinion constituted no

evidence under Havner for several reasons. In response, Keo contends that Havner

does not apply and therefore does not support the trial court's exclusion of Dr. Card's

testimony. We agree with Keo that Havner does not support the exclusion of Dr.

Card's testimony as scientifically unreliable evidence.

First, the appellees argue that because Keo is a convicted felon, her testimony

that her nose was infected before the second surgery is not credible. The appellees

go on to argue that because there is no objective evidence of infection before the

second surgery, there is no reliable foundation for Dr. Card's opinion regarding

causation.

In cases in which the credibility of a witness is likely to be a dispositive factor

in resolution of a case, summary judgment is inappropriate. Casso v. Brand , 776

S.W.2d 551, 558 (Tex. 1989); McClellan v. Ritz-Carlton Hotel Co. , 961 S.W.2d 463,

465 (Tex. App.--Houston [1st Dist.] 1997, no writ). Further, factual weaknesses

underlying an expert's causation opinion generally go to the testimony's weight,

rather than its admissibility, and the opinion is no evidence only if based completely

upon speculation and surmise. See Onwuteaka v. Gill , 908 S.W.2d 276, 283 (Tex.

App.--Houston [1st Dist.] 1995, no writ); cf. Schaefer v. Tex. Employers Ins. Ass'n ,

612 S.W.2d 199, 204-05 (Tex. 1980) (expert's medical opinion constituted no

evidence because it was based on speculation and surmise rather than reasonable

medical probability). Therefore, the credibility of Keo's testimony regarding the

presence of infection in her nose before the second surgery was an issue that was not

properly decided on summary judgment. Likewise, the determination that Dr. Card's

opinion was inherently unreliable because it was based on Keo's testimony was also

not appropriate for summary judgment because Keo's credibility was itself a fact

issue. The credibility of Keo's testimony and the reliability of Dr. Card's opinion go

to the weight, rather than the admissibility, of the evidence.

The appellees also argue that Dr. Card's opinion was inherently unreliable and,

therefore, no evidence, because he did not cite to any authoritative literature or

medical studies to support his criticisms of Dr. Vu's actions. Dr. Card's testimony

establishes he was familiar with preoperative and postoperative procedures for head

and neck surgery because of his knowledge, skill, experience, training, and education

in the field of otolaryngology. See Tex. R. Evid. 702. The appellees do not cite, and

we are not aware of, any authority that an expert must refer to authoritative literature

or medical studies in order for the expert's opinion to be reliable. The fact that Dr.

Card did not refer to authoritative literature or medical studies in forming his opinion

regarding such general subjects as preoperative and postoperative procedures and

whether it was advisable to perform an operation on the nose when an infection is

present does not render his methodology flawed.

The function of the trial court in this instance was not to determine if Dr.

Card's conclusion was correct, but to determine whether his analysis, based on the

evidence, was reliable. The trial court abused its discretion when it concluded Dr.

Card's analysis was not sufficiently reliable to be admitted into evidence.

The No-Evidence Summary Judgment

Because we have held the trial court should have considered Dr. Card's report

and deposition testimony, we now look to whether there was more than a scintilla of

evidence to raise a genuine issue of material fact. We review the no-evidence

summary judgment by construing the record in the light most favorable to the

nonmovant and disregarding all contrary evidence and inferences. See KPMG Peat

Marwick , 988 S.W.2d at 748 ; Flameout , 994 S.W.2d at 834 . A no-evidence summary

judgment is improper if the nonmovant brings forth more than a scintilla of evidence

to raise a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); KPMG Peat

Marwick , 988 S.W.2d at 748 ; Greathouse , 17 S.W.3d at 423 .

Dr. Card's expert report sets forth the general standard of care for surgical

procedures and opines how Dr. Vu breached the standard of care by failing to provide

adequate preoperative and postoperative counseling and care, deviating from

accepted record-keeping practices, and failing to properly manage Keo's

postoperative infection. In his deposition, Dr. Card criticized Dr. Vu's pre- and

postoperative practices and criticized Dr. Vu for performing the second operation

while Keo had an infection. Although there are several inconsistencies in Dr. Card's

testimony, we must construe the record in the light most favorable to the nonmovant

and disregard all contrary evidence and inferences in reviewing a no-evidence motion

for summary judgment. Flameout , 994 S.W.2d at 834 . Under this standard, we hold

there is more than a scintilla of evidence to support Keo's claims against Dr. Vu.

Therefore, we sustain issue one.

Conclusion

We reverse the judgment and remand the cause to the trial court for further

proceedings.

Sherry J. Radack

Justice

Panel consists of Chief Justice Schneider and Justices Radack and Smith. (4)

Publish. Tex. R. App. P. 47.4.

1. Keo apparently has no complaints about the outcome of this procedure.

2. Again, Keo signed an informed consent for the surgery.

3. If Keo's complaints went to issues unique to cosmetic surgery, our

opinion here might have a different result.

4. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals,

First District of Texas at Houston, participating by assignment.