Texas appeals court affirms decision to dismiss health care liability claims in malpractice case

By Melissa Busch | Apr 28, 2017

Beaumont - A Texas appeals court upheld a lower court’s decision to dismiss health care liability claims against two doctors and the pain institutes where they worked.

On April 20, the Ninth Court of Appeals affirmed the 284th District Court of Montgomery County, Texas, ruling, which sustained Emad Mikhail Bishai, The Woodlands Pain Institute, Bonaventure Ngu, and Premier Spine Institute, PLLC’s objections to expert reports submitted on behalf of their former patient, Doyle J. Blevins, Jr. The appeals court also upheld the motions to dismiss his health care liability claims against the parties.

According to court records, Blevins sought treatment for chronic lower back pain from Dr. Bishai and Dr. Ngu. Bishai, a spine specialist, administered epidural steroid injections to Blevins. Later, Dr. Ngu performed surgeries or procedures on Blevins to help alleviate his pain.

According to court documents, Blevins continues to experience “extreme and persistent pain, is currently disabled, and is unable to work due to his injuries. Blevins alleged that Bishai and Ngu breached their duties of care and caused his injuries due to their negligence for failing to properly diagnose and treat him.

From February 22, 2013 until May 19, 2014, Ngu performed four surgeries on Blevins. Between the first and second surgeries, Blevins developed worsening right leg pain and he had to use a walker. Hardware placed by Ngu was removed during the second surgery. Between the second and third surgeries, Blevins complained of a squeaking noise coming from his back. Ngu said the noise was most likely due to “the rod sliding through the tulip and the set screw” that he placed in Blevins during surgery. After another surgery, Blevins complained that something felt like it came lose again and that he was experiencing a great deal of pain again.

At this time, Ngu concluded that another pedicle screw had broken, and he performed another surgery on Blevins. According to court documents, Blevins said the fourth surgery did not improve his quality of life.

The appeals court stated that the trial court could have reasonably concluded that the report from Blevins’ expert witness “was deficient regarding causation as to the Ngu defendants. This court also sustained Bishai’s challenge of the trial court’s order granting Blevin’s extension to cure his expert’s deficient report.

“We overrule all of appellant’s issues on appeal as to Dr. Bishai. We need not reach the Ngu appellees’ cross-issue and the Bishai appellees’ second cross-issue concerning the statute of limitations as these issues are unnecessary to our disposition in this matter,” according to the court opinion.

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