HOUSTON — The Court of Appeals in the First District of Texas has upheld a court ruling to deny a Chapter 74 motion to dismiss filed by Dr. Thomas Cook, the Craniofacial and Plastic Surgery Center-Houston, Surgical Assistant Qijun Song. Justice Peter Kelly filed the opinion on April 21st.
Among the many issues the appellants had argued in the 164th District Court in Harris County, they believed that appellee Kathleen Broussard's expert reports did not show a good effort to fall under the requirements to summarize standard of care, and that breaking that standard caused the alleged injury. The trial court overruled their objections and denied their request to dismiss the case against them.
Broussard underwent surgery at the center to fix a fractured bone in her eye socket she got from a fall. During they surgery, her lower right eyelid was cut which affected her tear duct system and required two additional surgeries. At the time of the first surgery, Dr. Cook was the surgeon and Song was the certified surgical assistant. Broussard sued them under the Texas Medical Liability Act and served a timely expert report from ophthalmologist Dr. Peter Kastl.
The appellants challenged the quality of his report as to his qualifications as an expert. The Appeals Court found Dr. Kastl's report failed to prove how he, a doctor specializing in eye care, was qualified to give an opinion on the standard of car for plastic surgery.
The trial court gave Broussard another 30-day extension, and she served supplemental reports from both Dr. Kastl and Dr. Wellington Davis. In his second report Dr. Kastl explained he had experience in the surgery performed by Dr. Cook. Dr. Davis is board certified in plastic surgery and gave the opinion that the injury Broussard received during her surgery was not a typical risk for that kind of procedure, and although it was unclear in the operative report who caused the injury, losing control of a surgical instrument by either Dr. Cook or Song caused her injury and broke the standard of care.
The appellants objected to the new reports and filed motions to dismiss, which was denied and a second appeal.
The Court of Appeals found the expert reports were satisfactory and a good faith attempt to comply; therefore ruling the trial court did not abuse it's judgement by denying the request to dismiss the case.