BRADLEY K. WEINER M.D. v. PATRICK LASHFORD
NO. 14-21-00289-CV
Fourteenth Court of Appeals
July 27, 2023
Reversed and Remanded and Memorandum Majority and Dissenting Opinions filed July 27, 2023. On Appeal from the 61st District Court, Harris County, Texas. Trial Court Cause No. 2020-18756.
MEMORANDUM MAJORITY OPINION
Bradley K. Weiner, M.D., appeals from the denial of his motion to dismiss Patrick Lashford‘s health care liability claim due to the inadequacy of an expert report under
For a health care liability claim, a claimant must serve an expert report on each defendant early in the litigation or risk dismissal of the claim. See
When, as here, a defendant challenges the adequacy of the expert report, the trial court must grant a motion to dismiss “if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report.”
A court‘s inquiry into the adequacy of a report is confined to the four corners of the report, taken as a whole. E.D., 644 S.W.3d at 664. The necessary information must be found in the text of the report itself; omissions cannot be supplied by inference. Hall v. Davies, 598 S.W.3d 803, 807 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (citing Scoresby, 346 S.W.3d at 555-56).
We review the trial court‘s denial of a motion to dismiss for an abuse of discretion. Bailey v. Amaya Clinic, Inc., 402 S.W.3d 355, 361 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see also Baty, 543 S.W.3d at 693. A trial court abuses it discretion if it acts in an unreasonable or arbitrary manner or without reference to any guiding rules or principles. Bailey, 402 S.W.3d at 361. Under this standard, “close calls must go to the trial court.” E.D., 644 S.W.3d at 664 (alteration and quotation omitted).
II. Background
Lashford sued Weiner, bringing a single health care liability claim of negligence. Lashford alleged that during the summer of 2017, he began having pain in his lower back and left leg. In March 2018, Weiner performed surgery on Lashford—a “revision decompression/fusion surgery at L5-S1 with implantation of an interspinous process device.” Lashford alleged that Weiner‘s care fell below acceptable medical standards because Lashford was “not a proper candidate for that procedure, and the procedure itself was not performed properly.”
Lashford served Weiner with an expert report, which the trial court ruled was deficient, and the court allowed Lashford to file an amended report. In the amended report—the subject of this appeal—the expert reviewed Lashford‘s
The expert detailed the standard of care applicable to Weiner and the alleged breach; Weiner does not challenge this aspect of the report. The expert opined that a large majority of practicing spine surgeons view an interlaminar fusion procedure as “inappropriate and a fringe operation in all cases.” Generally, spinal fusions are recommended in a limited number of cases: (1) instability; (2) malalignment, i.e., scoliosis involving a curve from side to side or sagittal malalignments in which the patient is pitched forward; or (3) when the amount of bone that needs to be removed is so much that the spine would become unstable. The expert reviewed all pre-surgical imaging and found no evidence of any of these circumstances. Thus, Weiner‘s excision of Lashford‘s interspinous ligament, insertion of an interspinous device, and attempted fusion were “not supported by reasonable modern medical care, and an attempted fusion was a deviation from the standard of care of a reasonable and prudent surgeon.” The expert identified the breach of the standard of care as “performing an inappropriate procedure lumbar fusion surgery
The expert opined regarding causation, “to a reasonable degree of medical certainty, that the breach in the standard of care by Dr. Weiner has resulted in pain, the need for ongoing medical care, and physical limitations to Mr. Lashford, which can be expected to continue into the future.” The expert noted that Lashford has had “three operations at his L5/S1 level, and his interspinous ligament between L5 and S1 has been excised,” which “places the patient at an increased risk for instability at the L5/S1 level. If this level becomes unstable in the future, he would require an additional procedure to fuse these vertebrae.” The expert opined that disruption of the L5/S1 joints, which would have been performed in this case, “leads to accelerated degenerative changes at this level, leading to premature osteoarthritis and subsequent pain.” The expert opined:
From the patient‘s current condition (pseudoarthrosis or nonunion after an attempted fusion), he will have, to a reasonable degree of medical certainty, further symptoms and is at risk for requiring additional surgical intervention. This is especially true because of the patient‘s relatively young age and remaining life expectancy. I believe that the additional pain and suffering experienced by Mr. Lashford, including additional medical treatments that he may require, are a direct result of Dr. Weiner‘s breach in the standard of care.
Weiner filed an objection to the amended report and motion to dismiss. The trial court overruled the objection and denied the motion. Weiner appeals.
III. Analysis
In a single issue, Weiner contends that the expert‘s report is inadequate because, among other reasons, (1) the expert‘s opinions about potential future harm
We agree with Weiner that the expert‘s reference to potential future symptoms and medical treatments did not describe an injury that Weiner caused. The expert opined that Lashford “may require” and is “at risk” or an “increased risk” for additional medical treatments or procedures “if” Lashford‘s vertebrae become unstable. Similarly, the expert explained that Weiner‘s surgery leads to premature osteoarthritis, but the expert did not opine that Lashford suffers from the condition. See Mooring v. Britton, No. 07-20-00253-CV, 2021 WL 537205, at *3-4 (Tex. App.—Amarillo Feb. 12, 2021, pet. denied) (mem. op.) (expert report was inadequate to establish causation of hemorrhage, which actually occurred, when expert opined that the breach caused a “risk” of hemorrhage); THN Physicians Ass‘n v. Tiscareno, 495 S.W.3d 599, 613-14 (Tex. App.—El Paso 2016, no pet.) (expert report was inadequate to establish causation of injury to baby from mother‘s alleged condition during childbirth—chorioamnionitis—when expert opined only that the defendant‘s breach created an “increased risk” for the condition rather than actually caused the condition).
Regarding current pain, the expert‘s opinion is conclusory. The expert provided no detail or explanation for how or why Weiner‘s performing an unnecessary surgery caused Lashford “additional pain and suffering” or “pain, the need for ongoing medical care, and physical limitations.” See Jelinek, 328 S.W.3d at 540 (expert report was conclusory and inadequate on issue of causation when the expert opined that a breach “resulted in increased pain and suffering and a prolonged hospital stay” with “no explanation of how the breach caused the injury“). The report provided no explanation for how or why the surgery resulted in pain, medical care, or physical limitations beyond what Lashford would have
IV. Conclusion
Weiner‘s sole issue is sustained. We reverse the trial court‘s May 6, 2021 order overruling Weiner‘s objections and denying Weiner‘s motion to dismiss, and we remand to the case to the trial court with instructions for the court to assess and award Weiner reasonable attorney‘s fees and costs of court and to dismiss Lashford‘s claim with prejudice. See id. (citing
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Poissant, and Wilson. (Poissant, J. dissenting).