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Grismore v. Texas Spine & Joint Hospital, Ltd., PAC

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2019

BENNIE GRISMORE, APPELLANT
v.
TEXAS SPINE & JOINT HOSPITAL, LTD., PAC, APPELLEE

          Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 17-0458-A)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          OPINION

          Greg Neeley, Justice.

         Bennie Grismore appeals the trial court's order granting a motion to dismiss filed by Texas Spine and Joint Hospital, Ltd., PAC (TSJH). He presents three issues on appeal. We reverse and remand.

         Background

         Grismore sustained a foot injury in 2007. This injury resulted in a complex regional pain syndrome. When the pain syndrome could not be controlled by other therapies, Grismore underwent surgery at East Texas Medical Center (ETMC) to have a Medtronic Restore Ultra 37712 spinal cord stimulator implanted in March 2008. The leads on the stimulator were replaced in June 2008 at ETMC. Grismore's medical records reflect that Grismore complained of swelling and discomfort when he used the stimulator. He also noted that the stimulator overheated when it was recharged and that, as a result, Grismore did not use the device regularly.

         In February 2015, Grismore underwent surgery at TSJH at which time the Medtronic stimulator's battery was replaced with a RestoreSENSOR SureScan MRI 97114 battery. Following this replacement, Grismore complained of pain, spasms, and shocks. He further reported several elevated blood pressure readings. Grismore indicated to his home health practitioner that he was unable to drive a vehicle and was homebound due to the pain, weakness, and numbness to his extremities. The Medtronic Restore Ultra 37712 spinal cord stimulator was recalled in September 2013 and was followed by a recall of the RestoreSENSOR SureScan MRI 97114 battery in November 2014. In August 2016, Grismore underwent another surgery where the Medtronic Restore Ultra 37712 spinal cord stimulator and RestoreSENSOR SureScan MRI 97114 battery were replaced with a Nevro stimulator and battery.

         In March 2017, Grismore brought healthcare liability claims against Medtronic, Inc., ETMC, and TSJH.[1] He alleges that TSJH was negligent by stocking the recalled Medtronic RestoreSENSOR SureScan MRI 97114 battery after it was recalled in November 2014 and by allowing it to be implanted during the 2015 surgery.

         In compliance with Section 74.351 of the Texas Civil Practice and Remedies Code, Grismore served TSJH with an expert report and curriculum vitae of Dr. Terrence Shaneyfelt. TSJH filed objections to Dr. Shaneyfelt's report, including objections that he was unqualified to address the standard of care applicable to TSJH and failed to adequately address breach and causation. The trial court sustained TSJH's objections but allowed Dr. Shaneyfelt's report to be supplemented in accordance with Section 74.351(c) to cure the deficiencies. The trial court notified the parties of its ruling via e-mail, but the order sent to Grismore was delivered to an email address other than the one Grismore's attorney designated in the e-file system. Grismore failed to supplement Dr. Shaneyfelt's expert report within the statute's thirty-day time period to cure any deficiencies.

         When TSJH filed an amended motion to dismiss because the report was not timely supplemented, Grismore's attorney claimed he first learned of the trial court's ruling and Dr. Shaneyfelt's report was supplemented within the following thirty days. After the filing of Grismore's response to TSJH's amended motion to dismiss, the trial court granted TSJH's amended motion to dismiss and severed the dismissal of TSJH from the remainder of the case. This appeal followed.

         Expert Report

         In his second issue, Grismore contends Dr. Shaneyfelt is qualified to render an opinion with regard to TSJH's standard of care, breach, and causation. In his third issue, Grismore alleges that Dr. Shaneyfelt's report adequately addresses standard of care, breach, and causation.[2]

         Standard of Review

         A trial court's ruling on qualifications of a medical expert and the sufficiency of an expert's report under Chapter 74 is reviewed for an abuse of discretion. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Van Ness, 461 S.W.3d at 142. However, in exercising its discretion, it is incumbent upon the trial court to review the report, sort out its content, resolve any inconsistencies, and decide whether the report demonstrated a good faith effort to show that the plaintiff's claims have merit. See id. at 144. When reviewing factual matters committed to the trial court's discretion, an appellate court may not substitute its judgment for that of the trial court. Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

         When the plaintiff timely serves an expert report, and the defendant timely files a motion to dismiss to challenge the adequacy of the report, the trial court may take one of three actions. Mangin v. Wendt, 480 S.W.3d 701, 705 (Tex. App.-Houston [1st Dist.] 2015, no pet.). First, if the trial court concludes that the report is adequate, it must deny the motion. Id. Second, if the trial court concludes that the report does not constitute an objective good faith effort to comply with the statute, it must grant the motion. Id.; see Tex. Civ. Prac. & Rem. Code § 74.351(l) (West 2019). Third, if the trial court concludes that the report is an objective good faith effort to comply with the statute but is ...


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