1st District Court of Appeals reverses says expert's opinion did not meet requirements in med-mal, reverses ruling

By Elizabeth Alt | Nov 27, 2018

HOUSTON – On Nov. 13, the 1st District Court of Appeals in Texas remanded a medical malpractice suit back to a lower court over findings that the medical expert opinion did not comply with statutory requirements.

Justice Russell Lloyd wrote the court order reversing the trial court ruling with Justices Evelyn Keyes and Jane Bland.

“Because Dr. (Jason) Nirgiotis’s report does not represent a good faith effort to comply with the statutory requirements, the trial court abused its discretion by denying Dr. (Hussein Adel) Elkousy’s and Fondren (Orthopedic Group)’s motion to dismiss,” Lloyd wrote in the opinion.

In 2015, the court's ruling states Justin M. Sherman injured his shoulder in a motorcycle accident. Elkousy performed a procedure on Sherman’s shoulder. Several days later, Sherman went to an emergency room with severe pain and swelling and was diagnosed with an infection. Elkousy performed several more operations on Sherman, including irrigation and debridement operations.  

Sherman sued Elkousy and Fondren Orthopedic Group in 2017 over allegations of medical malpractice. Elkousy and Fondren filed motions to dismiss Sherman’s suit, claiming that the medical expert report by Nirgiotis did not meet the statutory requirements. The 127th District Court in Harris County overruled their objections and denied the motion to dismiss.

Lloyd stated that Nirgiotis' report did not show how an alleged breach in the standard of care caused the infection Sherman suffered from and did not “specify how Dr. Elkousy or Fondren breached the standard of care… the report is insufficient as to causation because Dr. Nirgiotis does not adequately link Sherman’s injury to a breach in the standard of care.”

Lloyd stated that Sherman’s reliance on the statements Elkousy made to Sherman during a post-operative visit was “misplaced…Dr. Elkousy’s statements that 'the blame for the infection is no one else’s but his'… are not admissions that he or Fondren failed to exercise ordinary care with regard to the care they provided to Sherman.”

“Dr. Nirgiotis’s report…does not specify how Dr. Elkousy or Fondren breached the standard of care… the report is insufficient as to causation because Dr. Nirgiotis does not adequately link Sherman’s injury to a breach in the standard of care,” Lloyd wrote.

The trial court ruling was reversed and the case was remanded back to trial court for further proceedings.

Court of Appeals for the 1st District of Texas case number 01-18-00545-CV

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