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Johnson v. Harris

Court of Appeals of Texas, Eighth District, El Paso

April 19, 2017


         Appeal from 219th District Court of Collin County, Texas (TC # 219-00630-2013)

          Before McClure, C.J., Rodriguez, and Hughes, JJ.


          ANN CRAWFORD McCLURE, Chief Justice

         Tanyee 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.[1] 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 defendant doctors.

         We face 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.


         The 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 nipple complex.

         Dr. 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 post-procedure complications.

         Johnson 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.

         After 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.

         The 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 necrosis.
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.

         In a 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.

         The 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 injuries.

         Following 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.[2] 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.[3] The trial court overruled the motion for rehearing.

          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.


         Johnson's 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.

         The 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.

         The 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.

         A 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 ...

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