Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 162nd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-07763
Justices Schenck, Osborne, and Reichek
J. SCHENCK, JUSTICE
Edwina Oliver appeals a no-evidence summary judgment in favor
of appellee Paul Saadi, M.D. The trial court entered summary
judgment after striking Oliver's expert witness's
report. In a single issue, Oliver contends the trial court
erred in finding her expert's report unreliable. Dr.
Saadi contends Oliver waived error by not challenging all
possible justifications for the trial court's ruling. For
the reasons stated below, we affirm the summary judgment.
Because the dispositive issues in this case are settled in
law, we issue this memorandum opinion. See Tex. R.
App. P. 47.4.
was treated by Dr. Saadi for a spinal condition. Prior to
undergoing surgery, Oliver suffered from a host of
conditions, including severe back pain, radicular leg pain on
her right leg, cervical myelopathy, and Parkinson's
disease. Her expert described her pre-operative spinal
condition as severe stenosis of the spinal canal at L3-4 and
L4-5 along with bilateral foraminal stenosis at L3-4 and on
the right side of L4-5. In July of 2013, Dr. Saadi operated
on Oliver, fusing disks in her back. After the surgery,
Oliver experienced foot drop. Her foot strength and mobility
measured at zero out of a range of five. However, by December
of 2013 Oliver's condition had improved, and she could
lift her foot with a strength measured at four out of
10, 2015, Oliver filed suit for negligence against Dr. Saadi.
In her petition, she contended Dr. Saadi violated the
standard of care for a reasonably prudent surgeon,
proximately causing her foot drop. Oliver designated Brent
Morgan, M.D. as an expert witness on the standard of care and
causation and he prepared a report. Dr. Morgan is a
board-certified neurological surgeon who is currently the
Neurotrauma Director at the Medical Center of
Plano. In preparing his expert report, he
reviewed the following documents related to Oliver's
care: "medical records from Doctors Hospital, medical
records from Dr. Saadi, MRI report from Doctors Hospital at
White Rock Lake, an MRI scan report from Baylor Diagnostic
Imaging Center, a medical record of Dr. Sharisse Stephenson,
a medical record of Dr. Vaughan." In his report, Dr.
Morgan concludes there were several deviations from the
standard of care. He states it is probable that "had it
[the foraminal stenosis] been addressed there would not have
been a permanent neurological injury." However, the
report does not specify what Dr. Morgan believed was the
cause of the foot drop.
November 24, 2015, Dr. Saadi filed an objection to Dr.
Morgan's report and simultaneously filed a motion to
dismiss. The trial court issued an order denying the motion
to dismiss and overruling Dr. Saadi's objection.
Saadi deposed Dr. Morgan. At the deposition, Dr. Morgan
initially testified that he did not know what caused the
paralysis. Dr. Morgan also stated during his deposition that
foot drop is a known complication of some back surgeries,
foot drop following surgery can occur through non-negligent
causes, and that the development of foot drop following
surgery does not mean "in and of itself" that the
surgeon was negligent.
Morgan was then asked what could have caused the foot drop.
He listed several possible causes including transection of
the nerve root, severe traction injury, failure to decompress
an already compressed nerve, trauma to the nerve with
placement of the fusion graft, potential vascular injury, and
postoperative hematoma causing compression. At this point in
the deposition, Dr. Morgan was unable to say which of the
listed possibilities, in reasonable medical probability,
caused the foot drop. Dr. Morgan also stated that because he
did not know the source of the foot drop, he was unable to
say whether earlier treatment would have reversed
Oliver's condition. More particularly, Dr. Morgan
I would say that since nothing was done, I don't know,
but there is a possibility there could have been
something there that was reversible at the time. I
don't know because [an MRI or CT] wasn't done. I
can't opine about something that was not done.
in his deposition, Dr. Morgan was informed of an MRI
performed in March of 2014, eight months after Oliver's
surgery. He claimed he did not know about this MRI. The March
2014 MRI showed a fluid collection that resulted in
"moderate to severe descending nerve root compression,
most pronounced at the lower L4 level." Upon learning of
the March 2014 MRI, Dr. Morgan revised his opinion and stated
that a post-operative hematoma was the probable cause of the
paralysis. At this time, he stated that compression of the
nerve resulted in a hematoma that caused the foot drop. Dr.
Morgan acknowledged that no post-operative study of the area
was performed prior to March 2014, so he could not know that
there was a fluid collection present immediately
post-surgery. Moreover, he admitted that he could not say
what a post-operative MRI would have shown.
not knowing what an MRI right after surgery would have shown,
Dr. Morgan testified that in light of the 2014 MRI, it was
more likely than not that a hematoma compressed the nerve in
Oliver's foot, causing the foot drop. He stated that this
was true even though Oliver's foot drop had improved
significantly by December 2013. He further insisted that
"things could have been done differently" by Dr.
thereafter, Dr. Saadi filed a motion to exclude Dr.
Morgan's testimony. The motion challenged the reliability
of Dr. Morgan's opinions, arguing Oliver did not meet her
burden of establishing that Dr. Morgan's opinions are
reliable, especially with regard to causation. A few weeks
later, Dr. Saadi filed a no-evidence motion for summary
judgment, in which he argued that if the motion to exclude
Dr. Morgan is granted, Oliver would be without expert
testimony to support her claims regarding the standard of
care, the breach of the standard of care, and causation.
Expert testimony is typically required in medical malpractice
cases in Texas to develop those issues. See Rich v.
Mulupuri, 205 S.W.3d 1, 2 (Tex. App.-Dallas 2006, pet
trial court held a hearing on Dr. Saadi's motion to
exclude Dr. Morgan to determine whether the expert evidence
would become part of the summary judgment record. At the
hearing, counsel presented arguments and Dr. Morgan
testified. Specifically, Dr. Morgan testified that multiple
things could have caused the foot drop, he did not know what
caused the foot drop in this case, and that some of the
possible causes of the foot drop would not have been
negligence on the part of Dr. Saadi.
Morgan also testified that the purpose of a post-operative
radiology study would have been "to see if there was
something that could have been corrected." Again, Dr.
Morgan did not provide any evidence to support his assumption
that a fluid collection existed around the time of the
surgery; only that one existed eight months later. At the