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Kelsey-Seybold Medical Group, PLLC v. Cheeks

Court of Appeals of Texas, First District

July 23, 2019


          On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2017-53858

          Panel consists of Justices Lloyd, Kelly, and Hightower.



         Appellee 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.

         In 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.


         The 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. denied).

         Cheeks, 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.

         At St. 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.

         Cheeks 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 concludes:
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 cord.
The question then is how Ms. Cheeks acquired this abscess.

         After 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 sterile procedure.

         Dr. 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, 2016.
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 cord.
3. The underlying cause of both Ms. Cheeks' hospitalization is an abscess of her spine caused by a combined infection of Streptococcus pneumoniae and Acinetobacter baumannii.
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 ...

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