Court of Appeals of Texas, Ninth District, Beaumont
DOYLE J. BLEVINS JR., Appellant
EMAD MIKHAIL BISHAI, THE WOODLANDS PAIN INSTITUTE, BONAVENTURE NGU AND PREMIER SPINE INSTITUTE, PLLC, Appellees
Submitted on March 2, 2017
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 15-04-03842-CV
McKeithen, C.J., Horton and Johnson, JJ.
J. Blevins Jr. (Blevins or Plaintiff or Appellant) appeals
the trial court's orders sustaining defendants'
objections to Blevins's expert reports and granting their
motions to dismiss Blevins's health care liability
claims. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351 (West Supp. 2017). Blevins raises five issues
on appeal, arguing (1) that the trial court erred by granting
Appellees' motions to dismiss without first holding a
hearing on the sufficiency of Blevins's expert report,
(2) that the trial court erred by determining that the expert
report was served without leave of court, (3) that the trial
court erred by dismissing Ngu and Premier Spine Institute,
PLLC because they failed to challenge the final expert report
and thereby waived their objections, (4) that the trial court
abused its discretion in finding that Dr. Mallory was not
qualified to render an opinion under the statute, and (5)
that the trial court abused its discretion in determining
that the expert report was insufficient under section 74.351.
The Appellees raise cross-issues concerning the trial
court's order granting an extension of time and the
statute of limitations. We affirm.
in Original Petition
April 16, 2015, Blevins filed Plaintiff's Original
Petition and Request for Disclosure (Original Petition)
against defendants Emad Mikhail Bishai, M.D. (Dr. Bishai),
The Woodlands Pain Institute (WPI), Bonaventure Ngu, M.D.
(Dr. Ngu), Premier Spine Institute, PLLC (PSI), Spine
Frontier, Inc. (SF), and Invibio, Inc. (Invibio). In his
Original Petition, Blevins asserted a medical negligence
claim against Dr. Bishai and WPI (collectively "the
Bishai Defendants" or "Bishai Appellees") and
against Dr. Ngu and PSI (collectively "the Ngu
Defendants" or "Ngu Appellees").
parties do not dispute that Dr. Bishai administered epidural
steroid injections to Blevins and that, sometime thereafter,
Dr. Ngu performed certain surgeries or procedures on Blevins.
Blevins alleged in his Original Petition that Dr. Bishai was
a "spine specialist" who treated Blevins for
"extreme chronic lower back pain" at WPI's
facilities between November 12, 2012, and February 1, 2013.
On November 12 and 27, 2012, Dr. Bishai administered a lumbar
epidural injection to Blevins's lower back or spine.
According to Blevins, on January 15, 2013, Blevins visited
Dr. Bishai, complaining that the pain persisted, and pursuant
to Dr. Bishai's recommendation, Blevins underwent an MRI
of his lumbar spine without contrast. According to the
Original Petition, when Dr. Bishai met with Blevins on
February 1, 2013, to discuss the MRI results, Dr. Bishai
"refuse[d]" to treat Blevins further and advised
Blevins to find another spine specialist.
alleged that on February 4, 2013, another person not named in
the lawsuit performed another MRI with contrast on Blevins.
Blevins contends that he continued to experience
"extreme" pain, and his primary care physician
referred him to Dr. Ngu. Blevins alleged that he visited Dr.
Ngu at PSI's facilities on February 15, 2013, and on
February 22, 2013, and, thereafter, Dr. Ngu performed lower
back surgery on Blevins that included several procedures as
well as the installation of "pedicle screws [and]
the surgery, Blevins visited Dr. Ngu again on March 12, 2013,
and Dr. Ngu noted that Blevins's surgical wound was not
healing. Dr. Ngu saw Blevins again on July 30, 2013, and at
that time he noted that Blevins complained of radiating
"electrical shooting pains[.]" Dr. Ngu then
examined Blevins on August 29, 2013, and according to
Blevins, Dr. Ngu recommended another MRI, after which Dr. Ngu
recommended "hardware removal[.]"
alleged that on September 4, 2013, Dr. Ngu "attempted .
. . corrective surgical procedures" on Blevins to
"revise  defective hardware" and also performed
additional surgical procedures on Blevins. Blevins complained
of continued pain when he saw Dr. Ngu post-operatively in
October and November 2013. Dr. Ngu recommended a lumbar CT
scan. Blevins met with Dr. Ngu on December 3, 2013, to
discuss the results of the CT scan, and, according to the
Original Petition, Dr. Ngu noted that "the squeaking and
popping sound coming from Plaintiff's back was  likely
a result of one  set [of] screws being loose and the rod
sliding through the tulip of the screw[.]" Dr. Ngu then
recommended another procedure to "explore the defective
hardware[.]" Dr. Ngu performed revisionary surgery again
on January 24, 2014.
post-operative visit on March 19, 2014, Blevins contends that
he complained to Dr. Ngu that "the hardware feels like
it is coming loose and/or off, again[, ]" and Blevins
underwent another lumbar CT scan that same day, performed by
a non-party to this lawsuit. Blevins alleges that at a May 1,
2014, post-operative visit with Dr. Ngu, Blevins advised Ngu
that the hardware was still making noises, and Dr. Ngu
suspected this was due to "a broken pedicle screw."
Dr. Ngu then recommended an additional surgery to implant a
to the Original Petition, in a May 13, 2014 pre-operative
discussion, Blevins complained of continued pain and an
audible clicking sound in his lower back, and Dr. Ngu
"noted that there was unspecified mechanical
complication of internal orthopedic device." On May 19,
2014, Dr. Ngu performed additional surgical procedures on
9, 2014, Blevins visited Dr. Ngu and complained of continued
lower back pain and an "extremely painful"
sensation of a loose screw in his back. The Original Petition
alleges that, at this visit, "Dr. Ngu informed Plaintiff
that he refuse[d] to treat Plaintiff any further[.]" The
Original Petition, filed on April 16, 2015, did not recite
any additional treatment Blevins received, but alleged that
Blevins "is currently experiencing extreme and
persistent pain" and is currently disabled and unable to
work due to his injuries.
alleged that Bishai and Ngu breached their duties of care and
caused Blevins's injuries by the following acts or
a. Failing to diagnose Plaintiff's condition properly;
b. Failing to choose an appropriate procedure;
c. Failing to treat Plaintiff's condition properly;
d. Failing to provide the medical care reasonably required
for Plaintiff's condition;
e. Failing to consult a specialist;
f. Failing to properly monitor Plaintiff;
g. Failing to take precautions to prevent further injury to
h. Abandoning Plaintiff.
Original Petition asserted claims for direct and vicarious
liability against WPI and PSI and alleged that the Bishai and
Ngu Defendants' negligent conduct "was the sole
proximate cause of Plaintiff's spinal injuries and
continued deterioration of Plaintiff's spinal
Bishai Defendants filed an answer on May 1, 2015, entering a
general denial and asserting various defenses. On May 12,
2015, the Ngu Defendants filed an answer, also entering a
general denial and asserting various defenses.
Baule's Expert Report
August 28, 2015, Plaintiff filed a report and curriculum
vitae (CV) of Raymond M. Baule, M.D. (Dr. Baule) (Baule
Report). The Baule Report was fairly short. It stated the
The following are the responses to queries in the matter of
Doyle Belvins [sic]:
1.Did Dr. Bishai fall below the standard of care by not using
proper imaging (MRI with contrast, or otherwise) and taking
2.Can it be determined with the images provided, that there
is clear, distinctive indication of the injection being
administered directly into the cyst?
3. Is it possible that the steroid injection into Mr.
Blevins' spine exacerbated his condition, which resulted
in further disk degeneration and surgeries?
1. It appears that Dr. Bishai was within the standard of care
in his administration of the epidural steroid. It is
reasonable to perform an epidural steroid injection based