Jerry M. Keepers M.D. v. Connie Blessett

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.

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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.

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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).

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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).

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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

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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

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(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

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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

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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

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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

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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

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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.

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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

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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.

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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

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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

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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).

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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.

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