1st Court of Appeals rules expert was qualified in medical negligence case

By Gabriel Neves | Oct 15, 2018

HOUSTON – A Houston man who underwent a spinal surgery and had permanent nerve damage after the procedure has obtained a victory in an appellate court.

Justice Laura Carter Higley, on the bench of the 1st Court of Appeals, issued a 13-page ruling on Oct. 11, affirming the Harris County 11th District Court's decision a the lawsuit filed by Tony Le against doctors Kenneth Lee and Karlyn Powell and the clinic K.L. Modern Spine PLLC.

Le sued the doctors and the clinic on grounds of negligence and gross negligence because of nerve damage that allegedly resulted from the surgery.

After Le filed an expert report in the suit, the doctors and K.L. Modern Spine raised objections against Le's claims and a report signed by Dr. Robert Yong of Boston's Brigham and Women's Faulkner Hospital, which were overruled by the lower court. They claimed in the appeal that the district court abused its discretion on denying their requests.

As stated in the ruling, Le "was experiencing pain in his neck that radiated into his arms, extending to his elbows," as well as "numbness and tingling in his arms, again extending to his elbows" and was diagnosed with “displacement of cervical disc, cervicalgia, cervical radiculitis and cervical stenosis.”

The doctors recommended spinal surgery, which took place on Oct. 8, 2015. Lee was the surgeon with Powell serving as anesthesiologist. After awakening from surgery, Le alleges he started to feel pain in his right hand and arm and was hospitalized for two days. He alleges he sustained permanent injury to his ulnar nerve.

Yong stated in the report that "physicians, nurses, and other health care providers must employ appropriate patient positioning techniques to avoid injury to the patient," suggesting that Le's arm was not properly placed during the procedure, causing the nerve damage.

In her ruling, Higley sided with the report that Le provided and dismissed Powell's arguments to establish inconsistency in the report.

"In her attempt to establish inconsistency, however, Dr. Powell relies on records outside of the expert report," Higley said, adding that "because Dr. Powell relies on matters outside the expert report in support of its argument about internal inconsistencies, the argument fails."

Texas 1st District Court of Appeals case number 01-18-00309-CV

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