Court of Appeals of Texas, Eighth District, El Paso
from 219th District Court of Collin County, Texas (TC #
McClure, C.J., Rodriguez, and Hughes, JJ.
CRAWFORD McCLURE, Chief Justice
Johnson filed a medical malpractice suit against Dr. Scott
Harris and Dr. Peter Rafael (and his associated professional
association) over complications from a breast reduction
surgery. The case proceeded through discovery and
was near its trial date when the defendant doctors challenged
the qualifications of Dr. Herbert D. Stern, who was the only
liability expert Johnson designated to testify at trial. The
trial court granted both doctors' objections to Dr.
Stern's testimony, and dismissed the case as to both
several issues on appeal, but the critical question is
whether the trial court abused its discretion in striking a
medical expert's opinions because the expert had not
performed the particular medical procedure at issue within
four years of the alleged act of malpractice. Stated
otherwise, we must determine whether Johnson has carried her
burden to show her expert was qualified when his knowledge of
the relevant medical standard of care was claimed to be
stale. For the reasons noted below, we affirm.
AND PROCEDURAL SUMMARY
underlying suit alleges that Tanyee Johnson went to Dr.
Harris for a bilateral breast reduction. Johnson is
5'6" feet tall and had a forty-eight inch quadruple
D bra size. She sought the breast reduction to ease her neck,
shoulder, and back pain. Breast augmentation procedures are
relatively common, but breast reductions are somewhat less
so. This particular breast reduction was rarer still. Because
so much breast tissue needed be removed, the appropriate
procedure involved a "free nipple graft", which
means the nipple and areola are completely cut away, and once
breast tissue is removed, the nipple and areola are then
grafted back onto the remaining breast. One challenge with
this technique is to re-establish adequate blood flow to the
Harris counseled Johnson on having the procedure, and he was
the doctor who performed it. He also saw Johnson six days
post-surgery (the April 5th visit). Because Dr. Harris was
out of town for several days thereafter, Dr. Rafael saw
Johnson on the ninth day postprocedure (the April 8th visit).
Dr. Harris then returned and saw Johnson on the thirteenth
day post procedure (the April 11th visit). During these
post-procedure visits, the medical records document evolving
contends the breast tissue around the nipple complex during
this time became necrotic, and that an infection developed in
the dead or dying tissue. Dr. Harris had ordered additional
oral antibiotics on the April 5th visit. Dr. Rafael on the
April 8th visit changed the oral antibiotic, administered an
injection of another broad-spectrum antibiotic, and ordered
blood work. When Dr. Harris saw Johnson on the April 11th
visit, he had her admitted to the hospital. During this
extended hospital stay, she underwent several surgical
procedures to remove necrotic tissue, and Johnson was
effectively left with a bilateral mastectomy.
filing suit, Johnson timely filed a qualifying exert report
as required by Section 74.351(a) of the Texas Medical
Liability Act ("TMLA"). Tex.Civ.Prac.& Rem.Code
Ann. § 74.351(a)(West 2017). The report was authored by
Dr. Herbert D. Stern. Dr. Stern is licensed to practice
medicine in Florida and is board certified by the American
Board of Plastic Surgery, having held that certification
since 1980. He was previously board certified in surgery, but
allowed that certification to lapse. He maintains an active
practice in plastic surgery with the majority of his cases
involving re-contouring of the torso, and half of those
involving breast procedures. Neither Dr. Harris nor Dr.
Rafael challenged the qualifying medical report at the outset
of the litigation.
case was set for trial on March 2, 2015. A pretrial order set
deadlines for expert designations and Johnson designated only
Dr. Stern to establish liability and causation. The
designation included an amended report from Dr. Stern that
criticized Dr. Harris in four areas:
1. Johnson's pre-procedure blood work showed her to be
anemic. Medical literature reports a correlation between
anemic patients and postoperative infections. Dr. Stern
believes the elective procedures should have been postponed
until the anemia was addressed.
2. Based on comments in the operative report, Dr. Stern
believes that Dr. Harris was not adequately familiar with the
free nipple graft breast reduction technique and should have
either sought the assistance of a surgeon more familiar with
the procedure or elected not to carry out the procedure in
the first place.
3. Dr. Harris delayed in properly diagnosing and treating
Johnson's postoperative breast infections and tissue
4. Based on Johnson's claim that she was not informed
that the free nipple graft technique would forever prevent
her from breastfeeding, Dr. Stern faults Dr. Harris for not
disclosing this known and certain side-effect of the free
nipple graft procedure.
later deposition, Dr. Stern added a fifth criticism:
5. Dr. Harris took too much breast tissue in the procedure
(attempting to get to a B cup size from a DDDD) such that the
skin flap was too thin and therefore more susceptible to
necrosis and later infection.
report also criticized Dr. Rafael, but only for his
post-procedure follow up. Dr. Stern primarily faulted Dr.
Raphael for not obtaining a proper fluid culture on the April
8th visit, and failing to hospitalize Johnson at that time.
The report contained a paragraph generically contending that
these failures were a proximate cause of Johnson's
Dr. Stern's deposition in early December 2014, both
defendant doctors challenged his qualifications. Dr. Rafael
did so in a motion to strike that was joined with a motion
for summary judgment. Dr. Harris simply filed an objection
and motion to dismiss. Both motions were set for hearing on
February 5, 2015, which would have been twenty-five days
prior to the trial setting. After the hearing, at which no
evidence was offered, the trial court struck Dr. Stern's
opinions and granted Dr. Rafael's motion for summary
judgment, and Dr. Harris' motion to dismiss. Johnson
filed a motion for rehearing which complained only that Dr.
Rafael's motion for summary judgment was not properly
served. The trial court overruled the motion for
Johnson raises three challenges to the trial court's
decision below. First, she contends that the trial court
erred in granting a motion to dismiss, as there is no
statutory or rule-based authority for granting a motion to
dismiss (as distinct from, say, a motion for summary judgment
as Dr. Rafael filed). In her second and third issues, she
challenges the trial court's decision to strike her
expert under the expert qualification standard in the MLIA
and Tex.R.Evid. 702.
DISMISSAL A PROPER PROCEDURAL OPTION?
first issue raises only a procedural question: can a trial
court simply dismiss a plaintiff's suit when it has
stricken a necessary expert on the eve of trial but no
procedural rule or statute expressly authorizes such a
dismissal? We think the general answer to that question is
no, but because Johnson did not complain about the procedural
vehicle used below, the objection is waived.
MLIA has a specific provision allowing for the dismissal of a
claim when an expert is struck at the outset of the
litigation. A medical malpractice plaintiff must file a
qualifying medical report within 120 days of the health care
provider's answer. Tex.Civ.Prac.&Rem.Code Ann. §
74.351(a). The medical provider then has twenty-one days from
service of the report to file an objection, or it is waived.
Id. If an objection under Section 74.351(a) is
filed, and is found to be meritorious, by express wording of
the statute the trial court shall dismiss the suit.
Id. at § 74.351(b)(2). Dr. Harris did not bring
this type of challenge and the dismissal remedy of Section
74.351(b)(2) would not apply here.
MLIA has other provisions dealing with expert qualifications
which we discuss in more detail below. When a health care
provider objects to the qualifications of an expert based on
one of these grounds, they must generally do so not later
than the 21st day after the date they receive a copy of the
proffered expert's curriculum vitae, or the date of the
witness's deposition. Id. at 74.401(e)(West
2011). "The court shall conduct a hearing to determine
whether the witness is qualified as soon as practicable after
the filing of an objection and, if possible, before
trial." Id. But this provision provides no
specific authorization for dismissal of an entire suit if the
expert is stricken. Likewise, Tex.R.Evid. 702 addresses
expert witness qualifications, and Tex.R.Evid. 104(a) allows
for a preliminary hearing on expert qualifications. The text
of neither rule authorizes a trial court to simply dismiss a
lawsuit if an expert does not meet those qualifications.
prudent party might, therefore, join a motion to strike a
purportedly unqualified expert with a no evidence motion for
summary judgment. If the expert is essential to prove a
particular element of a claim, but is found unqualified to do
so, the summary judgment would be granted under the authority
granted the trial court in Tex.R.Civ.P. 166a(i). That was the
strategy taken by Dr. Rafael. See also Larson v.
Downing,197 S.W.3d ...