Fondren Orthopedic Group, LLP and Hussein Adel Elkousy, M.D. v. Justin M. Sherman ( 2018 )

Opinion issued November 13, 2018.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00545-CV
———————————
FONDREN ORTHOPEDIC GROUP, LLP AND HUSSEIN ADEL
ELKOUSY, M.D., Appellants
V.
JUSTIN M. SHERMAN, Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Case No. 2017-37482
MEMORANDUM OPINION
This is an interlocutory appeal from the trial court’s denial of appellants
Fondren Orthopedic Group, LLP’s and Hussein Adel Elkousy, M.D.’s motion to
dismiss the healthcare liability claims filed against them by appellee Justin M.
Sherman. In two issues, Fondren and Dr. Elkousy argue that the trial court abused
its discretion by denying their motion to dismiss because: (1) Sherman’s expert is
not qualified to opine on the applicable standard of care and alleged breaches of the
standard of care; and (2) Sherman’s expert report failed to sufficiently set forth the
applicable standard of care, breach of the standard of care, and the causal relationship
between the breach and Sherman’s alleged injury. Because Sherman’s expert report
does not meet the statutory requirements, we reverse the trial court’s order denying
Fondren’s and Dr. Elkousy’s motion to dismiss.
Background
Sherman’s medical records are not before us, therefore, we accept the factual
statements in Sherman’s expert reports, prepared by Dr. Jason Nirgiotis, for the
limited purpose of this appeal.1
Sherman injured his left shoulder in a motorcycle accident on June 5, 2015.
His treating physician, Dr. Hussein Adel Elkousy (Dr. Elkousy) of the Fondren
Orthopedic Group, LLP (Fondren), performed a “left distal clavicle AC joint open
reduction/internal fixation with arthrex dog bone construct for implant” on Sherman
on June 17, 2015.
1
See Marino v. Wilkins, 393 S.W.3d 318, 320 n.1 (Tex. App.—Houston [1st Dist.]
2012, pet. denied) (citing Shenoy v. Jean, No. 01–10–01116–CV, 2011 WL
6938538, at *1 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, pet. denied) (mem.
op.)).
2
Nine days after his surgery, Sherman developed severe pain and swelling in
his left shoulder. He went to the emergency room where he was diagnosed with an
infection in his operative site.2 The following day, June 27, 2015, Dr. Elkousy
performed a second operation on Sherman, namely, “a left shoulder open and
arthroscopic irrigation and debridement of abscess and hematoma with removal of
hardware.” Dr. Elkousy also performed two more irrigation and debridement
operations on June 30 and July 1.
Sherman saw Dr. Elkousy for a post-operative visit on July 16. One of Dr.
Elkousy’s notes from that visit states, “I will take ownership of the infection as it
occurred after my surgery. The organism is a common one found in the community
so it is not clear how it was acquired, but we will make the assumption that it
occurred from surgery.” Dr. Nirgiotis states in his report that “during that office visit,
which was recorded by Justin Sherman, Dr. Elkousy state[d] that the blame for the
infection is no one else’s but his.”
Sherman sued Dr. Elkousy and Fondren3 for medical malpractice on June 5,
2017. On October 20, 2017, Sherman served Dr. Elkousy and Fondren with Dr.
Nirgiotis’s expert report. Dr. Elkousy and Fondren objected to the sufficiency of the
2
Dr. Nirgiotis’s report does not identify the type of infection Sherman developed.
3
Sherman non-suited his claims against a third defendant, The Texas Orthopedic
Hospital.
3
report and moved to dismiss Sherman’s medical malpractice claims pursuant to
section 74.351(b) of the Texas Civil Practice and Remedies Code. Specifically, Dr.
Elkousy and Fondren argued that Sherman’s expert report failed to establish on its
face that Dr. Nirgiotis is qualified to render opinions in this case, and that the report
failed to adequately set forth the standard of care, breaches in the standard of care,
and the causal relationship between any alleged breach and any injury suffered by
Sherman. After considering the motion and Sherman’s response, the trial court
granted Sherman a 30-day extension to file an amended report.4
Sherman timely served Dr. Elkousy and Fondren with Dr. Nirgiotis’s
amended and supplemental expert reports. Dr. Elkousy and Fondren objected to the
sufficiency of Dr. Nirgiotis’s reports on the same grounds they objected to his initial
report and moved to dismiss Sherman’s medical malpractice claims pursuant to
section 74.351(b).
The trial court overruled Dr. Elkousy’s and Fondren’s objections and denied
their motion to dismiss. This interlocutory appeal followed.
4
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (West 2017) (stating trial court
“may grant one 30-day extension to the claimant in order to cure the deficiency” in
initial expert report).
4
Dr. Nirgiotis’s Report5
In his report, Dr. Nirgiotis discusses the techniques and treatments necessary
to prevent the introduction of bacteria into a surgical wound.
The techniques and care required to avoid introducing bacteria to the
surgical wound are numerous. First, a dose of appropriate antibiotics
must be administered prior to the skin incision. The antibiotic of choice
must cover the bacteria most likely to cause infection, especially staph
aureus. Then, an appropriate prep of the skin must be done. Sterile
technique must be maintained throughout the procedure. The length of
the procedure should be minimized, as longer operative times increase
infections. Blood loss must be minimized as this also increases
infection risk. Gentle handling of tissue should be undertaken to avoid
tissue damage, as damaged tissue will be more susceptible to infection.
Great care must be taken to make sure that the instruments used are
sterile and that the implant has maintained sterility prior to its use. An
appropriate dressing should be used to cover the wound at the end of
the operation. Appropriate antibiotics should be continued post-
operatively when an implant is used.
All of these techniques and treatments apply to everyone involved in
the care of Mr. Sherman, including applying to Dr. Elkousy, The
Fondren Orthopedic Group, and The Texas Orthopedic Hospital.
Failure to take one or more of these precautions was the proximate
cause of Mr. Sherman’s infection.
With respect to Dr. Elkousy, Dr. Nirgiotis opined in his report that:
The standard of care for Dr. Elkousy in treating Mr. Sherman required
that he not allow bacteria to be introduced into the wound during his
operation on 6/17/15 to repair Mr. Sherman’s shoulder injury. Care
must be taken during major orthopedic operations, and especially
during operations that involve implants, to ensure that no bacteria are
introduced into the wound as this will lead to an infection. Prudent and
ordinary care would require Dr. Elkousy to administer appropriate
5
Dr. Nirgiotis’s supplemental report incorporates by reference the opinions he
expressed in his initial and amended reports.
5
antibiotics, maintain sterile technique, and generally, not introduce
dangerous bacteria into Mr. Sherman’s wound.
....
There was a breach in the standard of care by Dr. Elkousy in treating
Mr. Sherman when he allowed bacteria to be introduced into the wound
during his operation on 6/17/15 to repair Mr. Sherman’s shoulder
injury. Great care must be taken to avoid bacterial infections after major
orthopedic operations because it is such a devastating occurrence. This
is especially true when an implant is being used. Therefore, it was a
breach in the standard of care when adequate measures were not taken
by Dr. Elkousy to avoid bacteria from being introduced during Mr.
Sherman’s operation.
....
To a reasonable degree of medical probability, had Dr. Elkousy not
allowed bacteria to be introduced during his operation on Mr. Sherman
on 6/17/15 to repair Mr. Sherman’s shoulder injury, a devastating
infection would not have occurred. Therefore he would not have
required three subsequent operations to debride the infected tissue. And
therefore, he would not have had to have his implant removed, which
has led to constant pain and complete impairment of his shoulder and
arm.
With respect to Fondren, Dr. Nirgiotis opined in his report that:
The standard of care for the Fondren Orthopedic Group in assuming
care for Mr. Sherman required that they not allow bacteria to be
introduced into the wound during the operation on 6/17/15 to repair Mr.
Sherman’s shoulder injury. Care must be taken during major orthopedic
operations, and especially during operations that involve implants, to
ensure that no bacteria are introduced into the wound as this will lead
to an infection. Prudent and ordinary care would require Fondren
Orthopedic Group to ensure the administration of appropriate
antibiotics, the maintenance of sterile technique, and generally, that no
dangerous bacteria be introduced into Mr. Sherman’s wound.
....
6
There was a breach in the standard of care by the Fondren Orthopedic
Group in treating Mr. Sherman when they allowed bacteria to be
introduced into the wound during the operation on 6/17/15 to repair Mr.
Sherman’s shoulder injury. Great care must be taken to avoid bacterial
infections after major orthopedic operations because it is such a
devastating occurrence. This is especially true when an implant is being
used. Therefore, it was a breach in the standard of care when adequate
measures were not taken by the Fondren Orthopedic Group to avoid
bacteria from being introduced during Mr. Sherman’s operation.
....
To a reasonable degree of medical probability, had the Fondren
Orthopedic Group not allowed bacteria to be introduced during the
operation on Mr. Sherman on 6/17/15 to repair Mr. Sherman’s shoulder
injury, a devastating infection would not have occurred. Therefore he
would not have required three subsequent operations to debride the
infected tissue. And therefore, he would not have had to have his
implant removed, which has led to constant pain and complete
impairment of his shoulder and arm.
Chapter 74 Expert Reports
Section 74.351 of the Civil Practice and Remedies Code serves as a
gatekeeper. No medical negligence cause of action may proceed until the plaintiff
has made a good faith effort to demonstrate that a qualified medical expert believes
that a defendant’s conduct breached the applicable standard of care and caused the
claimed injury. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l), (r)(6) (West
2017). To constitute a good faith effort, the report must provide enough information
to fulfill two purposes: (1) inform the defendant of the specific conduct that the
plaintiff has called into question; and (2) provide a basis for the trial court to
conclude that the claim has merit. See Am. Transitional Care Ctrs. of Tex., Inc. v.
7
Palacios, 46 S.W.3d 873, 878–79 (Tex. 2001). A report that merely states the
expert’s conclusions about standard of care, breach, and causation does not fulfill
these two purposes. See id. at 879. The expert must explain the basis for his
statements and link his conclusions to the facts. See Bowie Mem’l Hosp. v. Wright,
79 S.W.3d 48, 52 (Tex. 2002). In determining whether the report meets those
requirements, the court should look no further than the report itself, because all the
information relevant to the inquiry must be contained within the report’s four
corners. See id. The expert report is not required to marshal all the plaintiff’s proof
necessary to establish causation at trial. See id.
Sufficiency of Dr. Nirgiotis’s Report
Dr. Elkousy and Fondren argue that the trial court abused its discretion by
denying their motion to dismiss Sherman’s health care liability claims against them
because: (1) the report does not demonstrate the Dr. Nirgiotis is qualified to opine
on the applicable standard of care and breaches of the standard of care; and (2)
Sherman’s report was conclusory and failed to sufficiently set forth the applicable
standard of care, breach of the standard of care, and the causal relationship between
the breach and Sherman’s alleged injury in his expert report.
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss for an abuse of
discretion. See Palacios, 46 S.W.3d at 875. A trial court abuses its discretion when
8
it acts in an arbitrary or unreasonable manner or without reference to any guiding
rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241–42 (Tex. 1985). As a reviewing court on matters committed to the trial court’s
discretion, we may not substitute our own judgment for that of the trial court merely
because we would have ruled differently. See Wright, 79 S.W.3d at 52. A trial court
has no discretion in determining what the law is or in applying the law to the facts.
See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
B. Analysis
In his report Dr. Nirgiotis stated that the applicable standard of care “required
that [Dr. Elkousy] not allow bacteria to be introduced into the wound” during
Sherman’s operation, and that “[p]rudent and ordinary care would require Dr.
Elkousy to administer appropriate antibiotics, maintain sterile technique, and
generally, not introduce dangerous bacteria into Mr. Sherman’s wound.” According
to Dr. Nirgiotis, Dr. Elkousy breached that standard of care “when he allowed
bacteria to be introduced into the wound” during Sherman’s surgery and by failing
to take “adequate measures . . . to avoid bacteria from being introduced during Mr.
Sherman’s operation.” Dr. Nirgiotis further opined that “[t]o a reasonable degree of
medical probability, had Dr. Elkousy not allowed bacteria to be introduced during
his operation on Mr. Sherman on 6/17/15 to repair Mr. Sherman’s shoulder injury, a
devastating infection would not have occurred.”
9
Dr. Nirgiotis offered a practically identical opinion with regard to Fondren.
Specifically, Dr. Nirgiotis opined in his report that the applicable standard of care
“required that [Fondren] not allow bacteria to be introduced into the wound” during
Sherman’s operation, and that “[p]rudent and ordinary care would require Fondren
Orthopedic Group to ensure the administration of appropriate antibiotics, the
maintenance of sterile technique, and generally, that no dangerous bacteria be
introduced into Mr. Sherman’s wound.” According to Dr. Nirgiotis, Fondren
breached the standard of care “when [it] allowed bacteria to be introduced into the
wound” during Sherman’s surgery and failed to take “adequate measures . . . to avoid
bacteria from being introduced during Mr. Sherman’s operation.” He further opines
that, “[t]o a reasonable degree of medical probability, had the Fondren Orthopedic
Group not allowed bacteria to be introduced during the operation on Mr. Sherman
on 6/17/15 to repair Mr. Sherman’s shoulder injury, a devastating infection would
not have occurred.”
Dr. Nirgiotis had previously identified a number of precautionary techniques
and procedures that could prevent the introduction of bacteria into a surgical wound,
and stated that the “[f]ailure to take one or more of these precautions was the
proximate cause of Mr. Sherman’s infection.” However, Dr. Nirgiotis does not
specify how Dr. Elkousy or Fondren deviated from these protocols, and we are not
allowed to draw inferences from the report or speculate as to how Dr. Elkousy and
10
Fondren might have done so. See Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279
(Tex. App.—Austin 2007, no pet.). Thus, Dr. Nirgiotis’s report is insufficient as to
breach because it does not specifically inform Dr. Elkousy or Fondren of the
negligent acts, or failures to act, that caused the injury to Sherman. See Gray v.
CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex. App.—Houston [1st. Dist.] 2006,
no pet.) (“Whether a defendant breached the standard of care due a patient cannot be
determined without ‘specific information about what the defendant should have done
differently.’”) (quoting Palacios, 46 S.W.3d at 880).
Sherman relies heavily on a notation in the medical records and statements
Dr. Elkousy made to Sherman during a post-operative visit to argue that the report
constitutes a good faith effort to comply with Chapter 74’s requirements. Sherman’s
reliance on these statements is misplaced. Dr. Elkousy’s statements that “the blame
for the infection is no one else’s but his,” he will “take ownership of the infection as
it occurred after [his] surgery,” and that he “will make the assumption that [the
infection] occurred from surgery” are not admissions that he or Fondren failed to
exercise ordinary care with regard to the care they provided to Sherman. Cf. Tex. W.
Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 196 (Tex. 2012) (noting “the long-
recognized principle that a physician who exercises ordinary care . . . is not liable to
a patient for a bad outcome”); Palacios, 46 S.W.3d at 880 (stating breach of standard
of care cannot be inferred from existence of injury alone because doctrine of res ipsa
11
loquitor does not generally apply in medical malpractice cases). Furthermore, Dr.
Elkousy’s remarks do not state how the bacteria was introduced into Sherman’s
wound during surgery or identify a specific act or omission by Dr. Elkousy or
Fondren that allowed the introduction of the bacteria that resulted in Sherman
developing a post-operative infection.
Accordingly, we conclude that Dr. Nirgiotis’s report does not represent a good
faith effort to comply with the statutory requirements because it does not specify
how Dr. Elkousy or Fondren breached the standard of care. We further conclude that
the report is insufficient as to causation because Dr. Nirgiotis does not adequately
link Sherman’s injury to a breach in the standard of care. Because Dr. Nirgiotis’s
report does not represent a good faith effort to comply with the statutory
requirements, the trial court abused its discretion by denying Dr. Elkousy’s and
Fondren’s motion to dismiss.6
We sustain Dr. Elkousy’s and Fondren’s second issue.
6
Having determined that the report was inadequate as to breach and causation, we do
not need to address whether the report demonstrates that Dr. Nirgiotis is qualified
to opine as to the standard of care and breach.
12
Conclusion
We reverse the trial court’s order denying Dr. Elkousy’s and Fondren’s
motion to dismiss, and we remand the cause to the trial court for further proceedings
consistent with this opinion.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
13