HARVEY BROWN, Justice.
Kimberly Wilson filed a medical malpractice action against Dr. Ihsan Shanti and the Shanti Pain and Wellness Clinic, P.A. The trial court excluded the testimony of Wilson's expert and subsequently granted summary judgment to Dr. Shanti. In five issues, Wilson contends the trial court erred by (1) excluding her expert's testimony as unreliable; (2) granting summary judgment when she raised a disputed fact issue; and (3) allowing her motion for new trial to be overruled by operation of law. We affirm the judgment of the trial court.
Dr. Shanti treated Wilson for pain in her lower back and left leg. Dr. Shanti performed three sets of injections to treat her
Even though the treatment was for her left side, Wilson began to experience pain on her right side between the second and third sets of injections. Her pain on both sides intensified after the RFTC injections. Comparison of electromyogram (EMG) tests
Wilson attached a report by Dr. Mark Barhorst to her original petition and designated him as her only expert. Dr. Barhorst's report stated that he interviewed Wilson, performed a physical exam, and reviewed her medical records. In Dr. Barhorst's opinion, Dr. Shanti's treatment fell below the standard of care, and the third set of injections caused increased pain to Wilson's left side and introduced pain to her right side. His report stated that Wilson "distinctly recall[ed] right leg pain beginning as a symptom immediately following [the third set of injections]."
Dr. Barhorst gave a deposition in which he confirmed that his report was complete and accurate. He testified that his causation opinion was based, in large part, on Wilson telling him her pain started after the third set of injections. He also stated that his opinion would "not necessarily" be wrong if Wilson's pain had started before the third set of injections. He offered no explanation during the deposition, however, for how he could reach the same conclusion if this significant factual basis for his opinion changed. At her deposition, Wilson testified that her right-side pain started between the second and third sets of injections and intensified after the third. Thus, her testimony contradicted Dr. Barhorst's testimony concerning the commencement of her pain.
Dr. Shanti filed a motion to exclude Dr. Barhorst's causation opinion as unreliable. He invoked the well-established Robinson factors for examining the methodology used by the expert
In response, Dr. Barhorst prepared a supplemental report that purported to correct the inconsistency between the facts he had stated as the basis for his opinion and the facts as related by Wilson in her deposition. In his supplemental report, Dr. Barhorst acknowledged Wilson's deposition testimony and asserted he based his original report and deposition testimony on an inaccurate memory of his conversation with Wilson. A review of his notes refreshed his recollection that her right-side pain began after the second set of injections, i.e. the medial block. Dr. Barhorst stated that these revised facts did not alter his conclusion, but he did not explain why. He stated that the second set of injections may have been a proximate cause of her right-side pain, but the third set of injections constituted "the most proximate cause" of her nerve damage.
After a hearing, the trial court granted the motion and excluded testimony by Dr. Barhorst relating to Wilson's right-side pain. Dr. Shanti then filed a motion for summary judgment. He attached a letter signed by the attorneys for both parties agreeing that no additional experts or opinions should be considered and that Wilson would replead to limit her damages to the right-side leg pain. Dr. Shanti also attached deposition testimony from Dr. Stephen Esses, one of Wilson's former treating physicians, who testified he saw no reason to believe the injections caused Wilson's injury. Instead, Dr. Esses identified the cause of Wilson's pain as a progressive narrowing of the canal where the nerves exit her spine. In her response, Wilson filed a motion to reconsider the motion to exclude Dr. Barhorst's testimony and admitted that she had no evidence on causation without his opinion. The trial court granted summary judgment.
Wilson timely filed a motion for new trial which was overruled by operation of law.
Wilson contends the trial court abused its discretion by granting Dr. Shanti's motion to exclude Dr. Barhorst's testimony on the cause of her right-leg pain.
We review a trial court's ruling on the reliability of expert testimony for an abuse of discretion.
To be admissible, an expert must be qualified and the testimony must be relevant and reliable.
There are limits to the trial court's rigorous examination. Courts may not second-guess the correctness of the expert's conclusions; they are only to examine whether the analysis used to reach those conclusions is reliable.
We will uphold the trial court's exclusion of Dr. Barhorst's testimony if a legitimate basis for the ruling existed.
If an expert bases his opinion upon unreliable foundational data, any opinion drawn from that data is unreliable and no evidence.
Twice during his deposition, Dr. Barhorst confirmed that, "a big part of the basis of [his] opinion that Dr. Shanti injured her nerve root during the [third set of injections] is the fact that [Wilson] told [him] she woke up and had right-sided leg pain after that procedure."
Wilson characterizes Dr. Barhorst's reliance on his recollection of her interview as a mistake, but Dr. Barhorst repeatedly discussed the timing of her pain as a primary basis for his opinion. His supplemental report attempted to correct the inconsistency in the basis for his causation opinion by calling the third set of injections the "most proximate cause" of Wilson's injury. Dr. Barhorst never stated, however, a basis for his conclusion that the
Wilson contends the trial court's exclusion of Dr. Barhorst's causation opinion constitutes an improper credibility determination. She cites LMC Complete Automotive, Inc. v. Burke for the proposition that the credibility of patient history and the general weakness of facts in support of an expert's opinion go to the weight of the expert's opinion, not the admissibility.
Dr. Barhorst's failure to explain why this change in a "big part" of the basis of his opinion did not alter his opinion demonstrates a legitimate basis for the trial court's finding that his opinion was unreliable.
Dr. Barhorst also relied on the nerve damage shown by comparing EMG tests. Nothing in the record indicates an EMG was performed between the second and third set of injections. Dr. Barhorst did not explain why the EMGs isolated the third set of injections as "the most proximate cause" of Wilson's nerve damage rather than the first or second sets of injections or a degenerative condition. Thus, Dr. Barhorst failed to link the data from the EMG to his causation opinion and his bald assurances are not enough.
In his supplemental report, Dr. Barhorst asserted that Dr. Shanti performed the third set of injections without fluoroscopy and that this conduct constituted gross negligence. Wilson raised the fluoroscopy issue before the trial court in terms of standard of care, not causation. Dr. Barhorst did not link this standard of care opinion to his causation conclusion that the third set of injections caused Wilson's right leg pain. Wilson, therefore, cannot claim on appeal that the lack of fluoroscopy
After considering the foundational data in support of Dr. Barhorst's causation opinion, we cannot say the trial court's ruling was arbitrary, unreasonable, or made without reference to guiding rules or legal principles. Therefore, the trial court did not abuse its discretion by excluding Dr. Barhorst's testimony with regard to the cause of Wilson's right-side pain.
We overrule Wilson's first and second issues.
Dr. Shanti filed traditional and no-evidence motions for summary judgment after the trial court excluded Dr. Barhorst's testimony. A trial court must grant a traditional motion for summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion.
We found no error in the exclusion of Dr. Barhorst's testimony as to the cause of Wilson's right-side pain. In a medical malpractice cause of action, breach of the standard of care and proximate cause must be established through expert testimony.
Nevertheless, Wilson contends the testimony of Dr. Shanti's own expert, Dr. Esses, raised a fact issue as to causation. Wilson did not raise this ground for defeating summary judgment in the trial court. A ground for defeating a summary judgment motion cannot be raised for the first time on appeal.
We overrule Wilson's third and fourth issues.
In her fifth issue, Wilson contends the trial court erred by overruling her motion
We hold the trial court did not abuse its discretion in excluding Dr. Barhorst's testimony or err in granting summary judgment. We therefore affirm the judgment of the trial court.
