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Blevins v. Bishai

Court of Appeals of Texas, Ninth District, Beaumont

April 20, 2017


          Submitted on March 2, 2017

         On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 15-04-03842-CV

          Before McKeithen, C.J., Horton and Johnson, JJ.


          LEANNE JOHNSON Justice

         Doyle 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).[1] 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.

         Procedural Background

         Allegations in Original Petition

         On 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").[2]

         The 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.

         Blevins 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] instrumentation[.]"

         After 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[.]"

         Blevins 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.

         In a 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 "stand-alone cage[.]"

         According 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 Blevins.

         On July 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.

         Blevins alleged that Bishai and Ngu breached their duties of care and caused Blevins's injuries by the following acts or omissions:

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 Plaintiff; and
h. Abandoning Plaintiff.

         The 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 condition."

         The 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.[3]

         Dr. Baule's Expert Report

         On 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 following:

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 proper precautions[?]
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 ...

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