KELSEY-SEYBOLD MEDICAL GROUP, PLLC D/B/A KELSEY-SEYBOLD CLINIC AND AHMED I. SEWIELAM, M.D., Appellants
EDDIE LYNN CHEEKS, Appellee
Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2017-53858
consists of Justices Lloyd, Kelly, and Hightower.
RICHARD HIGHTOWER JUSTICE
Eddie Lynn Cheeks sued appellants Kelsey-Seybold Medical
Group, PLLC d/b/a Kelsey-Seybold Clinic and Ahmed I.
Sewielam, M.D., asserting healthcare liability claims
governed by Chapter 74 of the Civil Practice and Remedies
Code. In compliance with section 74.351, Cheeks timely served
the expert report of Harry F. Hull, M.D. The Kelsey-Seybold
Clinic and Dr. Sewielam objected to the report and asserted
that it was deficient on multiple grounds, including that Dr.
Hull is not qualified to render an expert opinion on the
standards of care pertaining to the Kelsey-Seybold Clinic and
to Dr. Sewielam and that Dr. Hull's standard-of-care
opinions are inadequate. The trial court overruled the
Kelsey-Seybold Clinic's and Dr. Sewielam's
objections, and this interlocutory appeal ensued.
their sole issue, the Kelsey-Seybold Clinic and Dr. Sewielam
assert that the trial court abused its discretion in finding
that Dr. Hull's expert report satisfies section 74.351.
We agree and reverse the trial court's order.
medical records are not before us, and we accept the factual
statements in Dr. Hull's expert report for the limited
purpose of this appeal. See Marino v. Wilkins, 393
S.W.3d 318, 320 n.1 (Tex. App.-Houston [1st Dist.] 2012, pet.
a then-68-year old woman with chronic low back pain, received
three epidural spinal injections of corticosteroids for
treatment of her low back pain from Dr. Sewielam at the
Kelsey-Seybold Clinic. The dates of these injections were
December 7, 2015, December 28, 2015, and February 23, 2016.
Both of the December injections were at the L4-L5
intervertebral space, while the February 23, 2016 injection
was at the L5-S1 intervertebral space. On February 28, 2016,
Cheeks was admitted to St. Luke's Medical Center after
being found unresponsive at home.
Luke's, Cheeks was found to have an elevated white blood
cell count of 32, 400 with 80% neutrophils, and she was
started on intravenous antibiotics. A spinal tap was
performed on February 29. Cheeks's spinal fluid had a low
glucose content at 45, elevated protein at 188, and an
elevated number of white blood cells at 2218, but no
organisms were seen on gram stain. Her blood culture taken on
February 28 was positive for Streptococcus pneumoniae. Her
spinal fluid culture, which had been taken on February 29,
was negative. Cheeks was presumed to have S. pneumoniae
meningitis and sepsis. On February 29, an MRI found that
Cheeks had bilateral paraspinal abscesses at L4-L5. She
improved rapidly on antibiotics and was discharged from the
hospital on March 9 to continue intravenous ceftriaxone twice
a day at home for a total of six weeks.
was readmitted to St. Luke's on March 17, 2017, with back
pain, recurrent fever, persistent leukocytosis, and a
possible new left frontoparietal and temporal stroke. An MRI
of the brain was normal. Her blood culture was positive for
Acinetobacter baumannii, resistant to ceftriaxone. An MRI of
the spine showed that the paraspinous abscess was increasing
in size. Cheeks was treated with antibiotics for the positive
blood culture and paraspinous abscess, and she had a
laminectomy and drainage of the epidural abscess on March 25.
Culture of the pus from the abscess was negative. Cheeks was
discharged from St. Luke's on April 1, 2016, to continue
three weeks of intravenous antibiotics and rehabilitation at
a skilled nursing facility.
Regarding the two infections, Dr. Hull's expert report
The best explanation for Ms. Cheeks illnesses are that she
was affected by a paraspinous/epidural abscess caused by 2
different bacteria, pneumococcus and Acinetobacter. The
pneumococcus spread from the abscess to her blood, causing
sepsis, and, possibly, to her meninges, causing meningitis.
However, because the spinal tap was performed late, it is not
possible to definitively determine if she had meningitis or
just inflammation of the meninges from the adjacent
paraspinous abscess. Ms. Cheeks responded to antibiotic
therapy to cure her pneumococcal sepsis and possible
meningitis. However, because the antibiotic she was given was
not effective against the strain of Acinetobacter in the
abscess, the abscess continued to grow into an epidural
abscess impinging on her spinal cord. The Acinetobacter
eventually spread into her blood, causing sepsis. This
required a second hospitalization with antibiotic therapy and
surgical intervention to prevent further damage to her spinal
The question then is how Ms. Cheeks acquired this abscess.
discussing the various possible causes for epidural abscess,
Dr. Hull's report states:
[I]t is more likely than not that the contamination occurred
at the Kelsey Seybold Clinic where the intraspinal injections
were administered to Ms. Cheeks.
The bacterial contamination introduced into Ms. Cheeks'
spinal area could only have occurred if the Kelsey Seybold
clinic fell below the standard of care for maintaining
Hull's report concludes with the following summary:
1. Eddie L. Cheeks was hospitalized and treated with IV
antibiotics for pneumococcal sepsis, possible pneumococcal
meningitis and paraspinous abscesses in February and March,
2. Eddie L. Cheeks was hospitalized and treated for
Acinetobacter sepsis and an epidural abscess in March and
April, 2016. Her treatment included both IV antibiotics and a
laminectomy to drain the abscess and decompress her spinal
3. The underlying cause of both Ms. Cheeks'
hospitalization is an abscess of her spine caused by a
combined infection of Streptococcus pneumoniae and
4. The treatment provided to cure Ms. Cheeks' sepsis,
possible meningitis and epidural abscess was both medically
necessary and appropriate.
5. It is more likely than not that the cause of Ms.
Cheeks' epidural abscess was bacterial contamination
introduced into her spinal area during epidural injections of
steroids for pain relief at the Kelsey Seybold Clinic. Such
contamination could only have occurred if the staff of the
Kelsey Seybold Clinic fell ...