JERRY M. KEEPERS, M.D., Appellant
CONNIE BLESSETT, Appellee
Appeal from the 113th District Court Harris County, Texas
Trial Court Case No. 2018-22971
consists of Justices Keyes, Higley, and Landau.
Beth Landau, Justice.
Blessett filed a health care liability claim against Dr.
Jerry Keepers, alleging that he negligently performed an
epidural steroid injection that was meant to minimize
Blessett's on-going pain following a car accident five
months earlier. Blessett's petition alleged that Keepers
injured her spinal cord during the injection procedure, which
caused severe and permanent paralysis on the right side of
her body. As required by Chapter 74 of the Civil Practice and
Remedies Code, Blessett provided an expert report to support
her claim. Keepers moved to dismiss Blessett's
claim, challenging the adequacy of the report. The trial court
denied his motion, and this interlocutory appeal
three issues, Keepers contends the trial court abused its
discretion in denying his motion because Blessett's
expert was not qualified to offer an expert opinion on the
standard of care or breach and because the expert's
opinions on the elements of the standard of care, breach, and
causation were conclusory.
provided three expert reports in support of her health care
liability claims. All three reports were authored by Dr.
Michael Dogali, a neurosurgeon who, according to his
curriculum vitae, has held past positions as a professor of
neurological surgery at the University of Southern
California's medical school, a professor at the
University of California, Irvine and chair of its
neurological surgery department, a director of New York
University Medical Center's neurosurgery department, and
a clinical instructor at Yale University Medical Center.
expert reports provide the background facts in this case, and
we accept the factual statements in the reports for the
limited purpose of this appeal. See Bowie Mem'l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (review of
Chapter 74 report is limited to four corners of report).
Blessett's medical records are not before us.
was involved in a car accident in February 2016. When her
neck, shoulder, and back pain did not subside after several
weeks, Blessett obtained an MRI, which revealed disc
herniations in her lower cervical spine. Blessett sought pain
management treatment from Keepers.
21, 2016, Keepers performed an epidural steroid injection in
Blessett's lower cervical spine, and Blessett later
reported a reduction in pain. On July 19, Keepers performed a
second epidural steroid injection at the same spinal location
(C7-T1). Around noon the next day, Blessett went to St.
Luke's Medical Center Emergency Department with
complaints of extreme pain and paralysis on her right side.
An MRI revealed a lesion in the cervicothoracis spinal cord
which St. Luke's noted as a possible "spinal cord
injury secondary to needle mispositioning." Blessett
continues to have severe and permanent paralysis on the right
side of her body more than one year later.
sued Keepers and provided an expert report from Dr. Michael
Dogali, who opined that Keepers was negligent in
mispositioning the needle during the July 19 epidural steroid
injection, causing Blessett's severe and permanent
injuries. Keepers moved to dismiss Blessett's claim for
failing to provide an adequate expert report. See
Tex. Civ. Prac. & Rem. Code § 74.351(b) (providing
mechanism for dismissal of health care liability claims for
failure to provide adequate expert report). Blessett
supplemented her report, Keepers again sought dismissal, and
the trial court denied his motion. Keepers appeals.
contends the trial court abused its discretion by denying his
motion to dismiss Blessett's health care liability claims
because (1) Dogali was not qualified to opine on the standard
of care or breach and (2) Dogali's opinions on the
standard of care, breach, and causation were conclusory.
Standard of review
review a trial court's ruling on a motion to dismiss a
health care liability claim for an abuse of discretion.
Van Ness v. ETMC First Physicians, 461 S.W.3d 140,
142 (Tex. 2015) (per curiam). We "defer to the trial
court's factual determinations if they are supported by
evidence," but we review its legal determinations de
novo. Id. "A trial court abuses its discretion
if it rules without reference to guiding rules or
Expert report requirements
the Medical Liability Act, a plaintiff asserting health care
liability claims must timely serve each defendant physician
and health care provider with one or more expert reports and
a curriculum vitae of each expert whose opinion is offered to
substantiate the merits of the claims. Tex. Civ. Prac. &
Rem. Code § 74.351(a), (i); see Mangin v.
Wendt, 480 S.W.3d 701, 705 (Tex. App.-Houston [1st
Dist.] 2015, no pet.). The expert report must provide a
"fair summary" of the expert's opinions
regarding the (1) applicable standards of care, (2) manner in
which the care rendered by the physician or health care
provider failed to meet the standards, and (3) causal
relationship between that failure and the injury, harm, or
damages claimed. Tex. Civ. Prac. & Rem. Code §
74.351(r)(6). "No particular words or formality are
required, but bare conclusions will not suffice."
Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.
2011). Instead, the report must explain the basis of the
expert's statements and link the expert's conclusions
to the facts of the case. Jelinek v. Casas, 328
S.W.3d 526, 539 (Tex. 2010).
standard of care and breach, the expert report must explain
what the physician or health care provider should have done
under the circumstances and what the physician or health care
provider did instead. Am. Transitional ...