Basem Jassin, M.D. v. Thomas O. Bennett, Jr. ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00053-CV
BASEM JASSIN, M.D.,
Appellant
v.
THOMAS O. BENNETT, JR.,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 81508
MEMORANDUM OPINION
In one issue containing three sub-issues, Basem Jassin, M.D., appeals the trial
court’s order denying his motion to dismiss the health-care liability claim filed against
him by Thomas O. Bennett, Jr. We will affirm.
Background
Bennett sued Dr. Jassin for negligent post-operative care after Dr. Jassin had
performed sinus surgery on Bennett. Bennett served the expert report and curriculum
vitae (CV) of Matthew P. Branch, M.D., an otolaryngologist (ear, nose and throat/head
and neck surgeon) who took over Bennett’s post-operative care from Dr. Jassin, also an
otolaryngologist. Section 74.351 of the Civil Practice and Remedies Code provides that
within 120 days of filing suit, a claimant must serve a CV and one or more expert
reports regarding every defendant against whom a health-care claim is asserted. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011).
Dr. Jassin filed objections to Dr. Branch’s report and moved to dismiss Bennett’s
health-care liability claim. In the hearing on the motion to dismiss, the trial court
expressed concern that Dr. Branch had not reviewed certain medical records of
Bennett’s. The judge commented that although Dr. Branch’s report was “a well-
outlined, well-defined report,” he thought that Dr. Branch had to “have the benefit of
those records in order for me to find that he has complied with the statute.” The trial
court thus granted Bennett a thirty-day extension to “obtain the surgical records and the
posttreatment records” and serve a supplemental expert report. After Bennett timely
served Dr. Branch’s supplemental expert report, which indicated a review of additional
medical records, Dr. Jassin filed objections to it and again moved to dismiss Bennett’s
health-care liability claim. The trial court, noting its prior concern that Dr. Branch had
not reviewed all of Bennett’s “certain key” medical records, denied Dr. Jassin’s motion
to dismiss. This interlocutory appeal followed.
According to Dr. Branch’s report, Dr. Jassin performed sinus surgery on Bennett
on October 16, 2008 and saw Bennett four days later (on October 20) to remove nasal
packing. Bennett related to Dr. Branch that the following occurred when he saw Dr.
Jassin on this occasion: After a nurse (Susan) removed the packing, Dr. Jassin came into
Jassin v. Bennett Page 2
the room to vacuum his nose. It appeared to Bennett that Dr. Jassin was angry with him
and “stormed out of the room” because Bennett had stopped taking prescribed pain
medication due to an allergic reaction.
Dr. Jassin soon came back into the room and vacuumed the left side
of my nose for only a couple of seconds. Dr. Jassin then moved to the
right side of my nose and vacuumed for a few seconds. Suddenly,
without any warning, Dr. Jassin began gouging the lower part of my nose
with the hard suction device on the vacuum. The gouging of my nose by
Dr. Jassin felt like a knife stabbing me and I cried out in pain as the pain
was very intense. I began pulling my head away from Dr. Jassin because
of the pain. However, Dr. Jassin instructed Amanda to hold the back of
my head toward him and told me not to pull back because “we had to do
this.” I felt that Dr. Jassin was deliberately gouging my nose because he
was pushing the hard vacuum tool into my face with a great deal of force
on the inside of my right nostril instead of moving it around to vacuum
my nose.
Dr. Jassin punctured the inside of my nose and it started bleeding
profusely. I kept yelling to Dr. Jassin about the pain and asked him why
he was hurting me. Dr. Jassin did not answer my question.
A short while later, while I was still complaining and bleeding, Dr.
Jassin asked, “What hurt you? Was it when Susan took the packing out of
your nose?” I told Dr. Jassin, “hell no! It was when you punctured the
inside of my nose with the vacuum tool.”
At that time, Dr. Jassin just turned and walked out of the room
without saying anything further to me.
While Dr. Jassin was out of the room, Amanda gave me a bib and
gauze to catch the blood. A short time later, Dr. Jassin came back into the
room and stuffed some packing in my right nostril to stop the bleeding.
Dr. Jassin hurt me again when he stuffed the right side of my nose with
packing to stop the bleeding caused by gouging my nose with the hard
suction tool. It was my clear impression that Dr. Jassin intentionally
injured my nose by gouging it with the hard suction device.
Dr. Branch then saw Bennett the next day (October 21) and put him in the
hospital to remove the gauze and packing from his nose. He observed the surgical
Jassin v. Bennett Page 3
wound and noted that it appeared to have been reopened and was swollen and red. Dr.
Branch’s report states that Bennett describes pain on the right side of his face and eye
that has lasted for eighteen months since his follow-up visit with Dr. Jassin.
Adequacy of Report
We begin with Dr. Jassin’s second and third sub-issues, which contend that the
trial court abused its discretion in finding that a qualified report set forth a clear
standard of care and breach of that standard of care in such a manner to cause harm to
Bennett and that the trial court abused its discretion in finding that Dr. Branch’s reports
adequately provided the causal relationship between his alleged failure to meet the
applicable standard of care and the injury, harm, or damages claimed. We review the
trial court’s decision on a motion to dismiss a health-care liability claim for an abuse of
discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.
2001).
When considering a motion to dismiss under subsection 74.351(b), the issue for
the trial court is whether the report represents a good-faith effort to comply with the
statutory definition of an expert report. See id. An “expert report” is “a written report
by an expert that provides a fair summary of the expert’s opinions as of the date of the
report regarding applicable standards of care, the manner in which the care rendered by
the physician or health care provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or damages claimed.” TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(r)(6).
In determining whether the report represents a good-faith effort, the inquiry is
Jassin v. Bennett Page 4
limited to the four corners of the report. Palacios, 46 S.W.3d at 878. The report need
only represent a good-faith effort to provide a fair summary of the expert’s opinions.
Id. The report does not have to marshal all of the plaintiff’s proof and the plaintiff need
not present evidence in the report as if it were actually litigating the merits. Id. at 879.
Rather, to constitute a good-faith effort, the report must address the standard of care,
breach, and causation with sufficient specificity to inform the defendant of the conduct
the plaintiff calls into question and to provide a basis for the trial court to conclude that
the claims have merit. Id. at 875. A report, however, cannot merely state the expert’s
conclusions as to the standard of care, breach, and causation. See id. at 879. The expert
must explain the basis for his statements and must link his conclusions to the facts.
Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
Dr. Branch’s report states:
Standard of Care:
The sinus surgery performed on Tom Bennett at Ennis Regional
Hospital on October 16, 2008 by Dr. Jassin appears to have gone well. The
follow up visit four days later on October 20, 2008 appeared to have gone
well until Dr. Jassin became angry that the patient, Tom Bennett, had
stopped taking the pain medication due to an allergic reaction. The
standard of medical care following sinus surgery performed on Tom
Bennett would be to carefully and gently vacuum the nose after using
topical anesthesia to prevent pain following the sinus surgery. Dr. Jassin
deviated from the standard of reasonable medical care when, according to
Tom Bennett, he gouged the lower part of the patient’s nose with the hard
suction device on the vacuum. When the patient screamed in pain[,] the
“hard” vacuuming should have immediately stopped and topical
anesthesia reapplied if further debridement necessary. Instead, according
to Tom Bennett, Dr. Jassin continued to exert significant force on the
inside of the right nostril of Tom Bennett with the hard plastic suctioning
device until the inside of the patient’s nose started bleeding profusely.
The conduct described by Tom Bennett in his statement indicates a failure
Jassin v. Bennett Page 5
to follow the standard of reasonable medical care under the circumstances
and, based on a reasonable medical probability, is the cause of the injuries
described under the causation section of this report.
Causation:
Tom Bennett describes a pain on the right side of his face and eye
which has lasted for approximately 18 months from the date of the follow
up visit with Dr. Jassin on October 20, 2008. It is my opinion that the
manner in which Dr. Jassin applied the hard plastic suctioning device to
the inside of the right nostril of Tom Bennett reopened the wound and
caused damage to the sensory nerves in his sinus area, causing pain
behind the patient’s right eye. Based on a reasonable medical
probability[,] the damage to the sensory nerves may be a permanent
condition. Tom Bennett relates that he still feels intense pain in his teeth,
jaw and right eye, all of which began following the sinus surgery and
follow up visit with Dr. Jassin on October 20, 2008. There is a temporal
consistency between the onset of the facial pain following the sinus
surgery and the follow up visit with Dr. Jassin.
I saw Tom Bennett professionally on October 21, 2008 and I put Mr.
Bennett in the hospital on October 22, 2008 to remove the gauze and
packing from his nose. In treating Mr. Bennett on October 21 and 22, 2008
I was able to observe the wound and noted that the area of the wound
appeared to have been reopened and the area around the wound was
swollen and red.
In reviewing the records of the neurologist, Stephen Herzog, M.D.,
I noted his comments concerning TMJ. In my opinion, based on
examination of Tom Bennett in October 2008, he was not suffering from
TMJ and TMJ was not the cause of his facial pain and injury to his sensory
nerves.
The report plainly sets forth the standard of care applicable to Dr. Jassin, how he
breached it, and how the breach caused Bennett’s injuries. Dr. Branch’s report
addresses how Dr. Jassin’s conduct has been called into question, as well as the causal
relationship between Dr. Jassin’s alleged negligence and Bennett’s injuries. It is
sufficiently specific; it is not conclusory. The report provided a sufficient basis for the
Jassin v. Bennett Page 6
trial court to conclude that Bennett’s claim against Dr. Jassin has merit. We conclude
that Dr. Branch’s report represents an objective good-faith effort to comply with the
definition of an expert report.1 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).
Therefore, we conclude that the trial court did not abuse its discretion in denying Dr.
Jassin’s motion to dismiss. We overrule Dr. Jassin’s second and third sub-issues.
Expert Qualification on Causation
In his first sub-issue, Dr. Jassin contends that the trial court abused its discretion
in finding that Dr. Branch was qualified to tender an expert report on causation.
Specifically, Dr. Jassin asserts, “The documents offered by Dr. Branch cannot be expert
reports under the statute because he is not shown to be qualified to opine regarding any
causal link between Dr. Jassin’s care at issue and the asserted damages.”2
A trial court’s decision on whether a person is qualified to offer an expert
opinion in a health-care liability claim is reviewed under the abuse-of-discretion
standard. Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet.
denied); see also Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006). “[W]e defer to
the trial court on close calls concerning an expert’s qualifications.” Hillcrest Baptist Med.
Ctr. v. Payne, No. 10-11-00191-CV, 2011 WL 5830469, at *5 (Tex. App.—Waco Nov. 16,
2011, pet. denied) (mem. op.) (citing Larson, 197 S.W.3d at 304-05, and Broders v. Heise,
1We agree with Dr. Jassin that Dr. Branch’s supplemental report’s reference to Dr. Jassin’s excessive use
of Surgicel is merely observational; it attempts in no way to assert a standard of care and breach.
2 We reject Bennett’s assertion that Dr. Jassin failed to raise in the trial court his complaint that Dr. Branch
is not qualified to give an expert report on causation. Dr. Jassin adequately raised the issue in his
objections and in his motion to dismiss. See Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex.
App.—Dallas 2007, pet. denied).
Jassin v. Bennett Page 7
924 S.W.2d 148, 151 (Tex. 1996) (“The qualification of a witness as an expert is within
the trial court’s discretion. We do not disturb the trial court’s discretion absent clear
abuse.”)).
To be qualified to provide opinion testimony regarding the causal relationship
between the alleged departure from accepted standards of care in a health care liability
claim and the injury, harm, or damages claimed, the expert must be a physician who is
otherwise qualified to render opinions on such causal relationship under the Texas
Rules of Evidence. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C). Rule of
Evidence 702 provides: “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education
may testify thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702.
Dr. Branch’s report and CV reflect that he is a practicing otolaryngologist. His
report states:
During the course of my professional practice[,] I have performed
approximately 200 sinus surgeries such as the surgery performed by Dr.
Jassin on Thomas Bennett on October 16, 2008. On each such occasion
where surgery was performed, I also conducted the follow up
examination of the patient.
Additionally, in his causation opinion, Dr. Branch reported on his own
examination and treatment of Bennett, stating that he “was able to observe the wound
and noted that the area of the wound appeared to have been reopened and the area
around the wound was swollen and red.” Dr. Branch concluded:
It is my opinion that the manner in which Dr. Jassin applied the
Jassin v. Bennett Page 8
hard plastic suctioning device to the inside of the right nostril of Tom
Bennett reopened the wound and caused damage to the sensory nerves in
his sinus area, causing pain behind the patient’s right eye. Based on a
reasonable medical probability[,] the damage to the sensory nerves may
be a permanent condition. Tom Bennett relates that he still feels intense
pain in his teeth, jaw and right eye, all of which began following the sinus
surgery and follow up visit with Dr. Jassin on October 20, 2008. There is a
temporal consistency between the onset of the facial pain following the
sinus surgery and the follow up visit with Dr. Jassin.
We cannot say that the trial court abused its discretion in implicitly finding that
Dr. Branch is qualified to provide an expert report on causation for the complications
that allegedly arose from Dr. Jassin’s post-operative care following a sinus surgery that
Dr. Branch says he has performed approximately 200 times, along with providing the
follow-up care for those surgeries. See Sloman-Moll v. Chavez, No. 04-06-00589-CV, 2007
WL 595134, at *4 (Tex. App.—San Antonio Feb. 28, 2007, pet. denied) (mem. op.)
(holding that otolaryngologist’s expertise concerning standard of care for endoscopic
sinus surgery “also qualifies him to opine on the cause in fact of postoperative
complications that flow from that surgery”). “It is axiomatic that a physician trained to
perform surgery is also trained to manage surgical complications.“ Id. (citing Keo v. Vu,
76 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)); see also Livingston
v. Montgomery, 279 S.W.3d 868, 873-77 (Tex. App.—Dallas 2009, no pet.).3 And in that
vein, it would also be reasonable for the trial court to have considered Dr. Branch’s own
3
Dr. Jassin also contends that Dr. Branch is not qualified to rule out the vaguely referenced possible
diagnosis by a neurologist of a TMJ disorder as the cause of Bennett’s problems. Dr. Jassin asserts that
Dr. Branch’s report and CV do not reflect any expertise in neurology or TMJ disorders. But in an expert
report on causation, an expert is not required to rule out every possible cause of the injury, harm, or
damages claimed. See Payne, 2011 WL 5830469, at *5 (citing Baylor Med. Ctr. v. Wallace, 278 S.W.3d 552,
562 (Tex. App.—Dallas 2009, no pet.)). Therefore, whether Dr. Branch is qualified to rule out a TMJ
disorder is not at issue in this appeal.
Jassin v. Bennett Page 9
post-operative examination and treatment of Bennett in concluding that Dr. Branch is
qualified on causation.
Furthermore, because Dr. Jassin did not dispute that Dr. Branch is a qualified
expert on the standard of care applicable to Dr. Jassin’s treatment of Bennett for
purposes of Chapter 74, it would be reasonable for the trial court to have concluded
that, for purposes of his expert report under Chapter 74, Dr. Branch is qualified on the
causal relationship between the post-operative procedure and the alleged complication
arising from it. See Payne, 2011 WL 5830469, at *7 (citing Whisenant v. Arnett, 339 S.W.3d
920, 927 (Tex. App.—Dallas 2011, no pet.)).
We overrule Dr. Jassin’s first sub-issue and affirm the trial court’s order.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 29, 2012
[CV06]
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