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Wednesday, September 18, 2019

Ophthalmologist's report isn't sufficient to give standard of care opinion in eye injury case, appeals court rules


By Charmaine Little | Jul 24, 2018

HOUSTON – Unlike a trial court, the Court of Appeals in the 1st District of Texas decided July 12 a woman’s expert report wasn’t sufficient in a medical malpractice case.

Dr. Thomas Kevon Cook, Craniofacial and Plastic Surgery Center in Houston, Qijun Song and CSA filed an appeal in response to the 164th District Court of Harris County’s ruling that an Dr. Peter Kastl, an ophthalmologist, is qualified to speak on what is considered standard of care for a plastic surgeon and the surgeon’s assistant when performing a fractured facial bone operation. The appeals court disagreed and reversed the lower court’s decision.

“Dr. Kastl’s report is deficient because it does not show that he – an ophthalmologist—is qualified to testify as an expert witness on the question of whether the defendants departed from the applicable accepted standard of medical care for a plastic surgeon and his assistant performing surgery on a fractured facial bone,” according to the opinion.

According to the decision, Cook operated on Kathleen Broussard after she broke a bone in her eye socket in a fall and Song was Cook’s surgical assistant. Broussard filed a medical malpractice lawsuit after she suffered a rip in her lower eyelid during surgery. She included an expert report from Kastl in her documents.

Kastl said in his report that Cook and/or Song “made an inappropriate movement during their procedure” that breached their standard of care, which he said was to perform the surgery without bringing any further issues to Broussard. Kastl also pointed out Broussard had to get more surgery to fix her eyelid injury.

The defendants filed motions to get Broussard’s lawsuit dismissed and questioned Kastl’s ability to speak on the issue. Broussard provided an additional report from Kastl, who restated in a more extensive manner his opinion from the original report. The defendants filed more motions to dismiss and brought up concerns of whether Kastl was qualified to speak on the standard of care and causation.

The appeals court also brought up Chapter 74, which says a standard of care expert has to be fully knowledgeable on what is considered accepted standards of medical care in all areas including treatment, injury and diagnosis. It also mentioned that Kastl’s report doesn’t say he is qualified to speak on operations that repair facial injuries or that he has received any training or experience in plastic surgery or any other bone surgery, even if it isn’t close to the eye. The appeals court reversed the trial court’s decision to deny the defendants’ motions to dismiss and remanded the case back to the trial court. 

Justice Jennifer Caughey authored the opinion.

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