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Oliver v. Saadi

Court of Appeals of Texas, Fifth District, Dallas

August 30, 2019

EDWINA OLIVER, Appellant
v.
PAUL SAADI, M.D., Appellee

          On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-07763

          Before Justices Schenck, Osborne, and Reichek

          MEMORANDUM OPINION

          DAVID J. SCHENCK, JUSTICE

         Appellant 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.

         Background

         Oliver 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[1] 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.[2] 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 five.[3]

         On July 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.[4] 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.

         On 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.

         Thereafter, 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.

         Dr. 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 testified:

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.

         Later 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.

         Despite 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.[5] He further insisted that "things could have been done differently" by Dr. Saadi.

         Soon 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 denied).

         The 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.

         Dr. 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 ...


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