IN THE

TENTH COURT OF APPEALS

No. 10-12-00053-CV

BASEM JASSIN, M.D.,

Appellant

v.

THOMAS O. BENNETT, JR.,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 81508

MEMORANDUM OPINION

In one issue containing three sub-issues, Basem Jassin, M.D., appeals the trial 

court’s order denying his motion to dismiss the health-care liability claim filed against 

him by Thomas O. Bennett, Jr. We will affirm.

Background

Bennett sued Dr. Jassin for negligent post-operative care after Dr. Jassin had 

performed sinus surgery on Bennett. Bennett served the expert report and curriculum 

vitae (CV) of Matthew P. Branch, M.D., an otolaryngologist (ear, nose and throat/head 
Jassin v. Bennett Page 2

and neck surgeon) who took over Bennett’s post-operative care from Dr. Jassin, also an

otolaryngologist. Section 74.351 of the Civil Practice and Remedies Code provides that 

within 120 days of filing suit, a claimant must serve a CV and one or more expert 

reports regarding every defendant against whom a health-care claim is asserted. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011).

Dr. Jassin filed objections to Dr. Branch’s report and moved to dismiss Bennett’s 

health-care liability claim. In the hearing on the motion to dismiss, the trial court 

expressed concern that Dr. Branch had not reviewed certain medical records of 

Bennett’s. The judge commented that although Dr. Branch’s report was “a welloutlined, well-defined report,” he thought that Dr. Branch had to “have the benefit of 

those records in order for me to find that he has complied with the statute.” The trial 

court thus granted Bennett a thirty-day extension to “obtain the surgical records and the 

posttreatment records” and serve a supplemental expert report. After Bennett timely 

served Dr. Branch’s supplemental expert report, which indicated a review of additional 

medical records, Dr. Jassin filed objections to it and again moved to dismiss Bennett’s 

health-care liability claim. The trial court, noting its prior concern that Dr. Branch had 

not reviewed all of Bennett’s “certain key” medical records, denied Dr. Jassin’s motion 

to dismiss. This interlocutory appeal followed.

According to Dr. Branch’s report, Dr. Jassin performed sinus surgery on Bennett 

on October 16, 2008 and saw Bennett four days later (on October 20) to remove nasal 

packing. Bennett related to Dr. Branch that the following occurred when he saw Dr. 

Jassin on this occasion: After a nurse (Susan) removed the packing, Dr. Jassin came into 
Jassin v. Bennett Page 3

the room to vacuum his nose. It appeared to Bennett that Dr. Jassin was angry with him 

and “stormed out of the room” because Bennett had stopped taking prescribed pain 

medication due to an allergic reaction. 

Dr. Jassin soon came back into the room and vacuumed the left side 

of my nose for only a couple of seconds. Dr. Jassin then moved to the 

right side of my nose and vacuumed for a few seconds. Suddenly, 

without any warning, Dr. Jassin began gouging the lower part of my nose 

with the hard suction device on the vacuum. The gouging of my nose by 

Dr. Jassin felt like a knife stabbing me and I cried out in pain as the pain 

was very intense. I began pulling my head away from Dr. Jassin because 

of the pain. However, Dr. Jassin instructed Amanda to hold the back of 

my head toward him and told me not to pull back because “we had to do 

this.” I felt that Dr. Jassin was deliberately gouging my nose because he 

was pushing the hard vacuum tool into my face with a great deal of force 

on the inside of my right nostril instead of moving it around to vacuum 

my nose.

Dr. Jassin punctured the inside of my nose and it started bleeding 

profusely. I kept yelling to Dr. Jassin about the pain and asked him why 

he was hurting me. Dr. Jassin did not answer my question.

A short while later, while I was still complaining and bleeding, Dr. 

Jassin asked, “What hurt you? Was it when Susan took the packing out of 

your nose?” I told Dr. Jassin, “hell no! It was when you punctured the 

inside of my nose with the vacuum tool.”

At that time, Dr. Jassin just turned and walked out of the room 

without saying anything further to me.

While Dr. Jassin was out of the room, Amanda gave me a bib and 

gauze to catch the blood. A short time later, Dr. Jassin came back into the 

room and stuffed some packing in my right nostril to stop the bleeding. 

Dr. Jassin hurt me again when he stuffed the right side of my nose with 

packing to stop the bleeding caused by gouging my nose with the hard 

suction tool. It was my clear impression that Dr. Jassin intentionally 

injured my nose by gouging it with the hard suction device.

Dr. Branch then saw Bennett the next day (October 21) and put him in the 

hospital to remove the gauze and packing from his nose. He observed the surgical 
Jassin v. Bennett Page 4

wound and noted that it appeared to have been reopened and was swollen and red. Dr. 

Branch’s report states that Bennett describes pain on the right side of his face and eye 

that has lasted for eighteen months since his follow-up visit with Dr. Jassin.

Adequacy of Report

We begin with Dr. Jassin’s second and third sub-issues, which contend that the 

trial court abused its discretion in finding that a qualified report set forth a clear 

standard of care and breach of that standard of care in such a manner to cause harm to 

Bennett and that the trial court abused its discretion in finding that Dr. Branch’s reports 

adequately provided the causal relationship between his alleged failure to meet the 

applicable standard of care and the injury, harm, or damages claimed. We review the 

trial court’s decision on a motion to dismiss a health-care liability claim for an abuse of

discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 

2001).

When considering a motion to dismiss under subsection 74.351(b), the issue for 

the trial court is whether the report represents a good-faith effort to comply with the 

statutory definition of an expert report. See id. An “expert report” is “a written report 

by an expert that provides a fair summary of the expert’s opinions as of the date of the 

report regarding applicable standards of care, the manner in which the care rendered by 

the physician or health care provider failed to meet the standards, and the causal 

relationship between that failure and the injury, harm, or damages claimed.” TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(r)(6).

In determining whether the report represents a good-faith effort, the inquiry is 
Jassin v. Bennett Page 5

limited to the four corners of the report. Palacios, 46 S.W.3d at 878. The report need 

only represent a good-faith effort to provide a fair summary of the expert’s opinions. 

Id. The report does not have to marshal all of the plaintiff’s proof and the plaintiff need 

not present evidence in the report as if it were actually litigating the merits. Id. at 879. 

Rather, to constitute a good-faith effort, the report must address the standard of care, 

breach, and causation with sufficient specificity to inform the defendant of the conduct 

the plaintiff calls into question and to provide a basis for the trial court to conclude that 

the claims have merit. Id. at 875. A report, however, cannot merely state the expert’s 

conclusions as to the standard of care, breach, and causation. See id. at 879. The expert 

must explain the basis for his statements and must link his conclusions to the facts. 

Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).

Dr. Branch’s report states:

Standard of Care:

The sinus surgery performed on Tom Bennett at Ennis Regional 

Hospital on October 16, 2008 by Dr. Jassin appears to have gone well. The 

follow up visit four days later on October 20, 2008 appeared to have gone 

well until Dr. Jassin became angry that the patient, Tom Bennett, had 

stopped taking the pain medication due to an allergic reaction. The 

standard of medical care following sinus surgery performed on Tom 

Bennett would be to carefully and gently vacuum the nose after using 

topical anesthesia to prevent pain following the sinus surgery. Dr. Jassin 

deviated from the standard of reasonable medical care when, according to 

Tom Bennett, he gouged the lower part of the patient’s nose with the hard 

suction device on the vacuum. When the patient screamed in pain[,] the 

“hard” vacuuming should have immediately stopped and topical 

anesthesia reapplied if further debridement necessary. Instead, according 

to Tom Bennett, Dr. Jassin continued to exert significant force on the 

inside of the right nostril of Tom Bennett with the hard plastic suctioning 

device until the inside of the patient’s nose started bleeding profusely. 

The conduct described by Tom Bennett in his statement indicates a failure 
Jassin v. Bennett Page 6

to follow the standard of reasonable medical care under the circumstances 

and, based on a reasonable medical probability, is the cause of the injuries 

described under the causation section of this report.

Causation:

Tom Bennett describes a pain on the right side of his face and eye 

which has lasted for approximately 18 months from the date of the follow 

up visit with Dr. Jassin on October 20, 2008. It is my opinion that the 

manner in which Dr. Jassin applied the hard plastic suctioning device to 

the inside of the right nostril of Tom Bennett reopened the wound and 

caused damage to the sensory nerves in his sinus area, causing pain 

behind the patient’s right eye. Based on a reasonable medical 

probability[,] the damage to the sensory nerves may be a permanent 

condition. Tom Bennett relates that he still feels intense pain in his teeth, 

jaw and right eye, all of which began following the sinus surgery and 

follow up visit with Dr. Jassin on October 20, 2008. There is a temporal 

consistency between the onset of the facial pain following the sinus 

surgery and the follow up visit with Dr. Jassin.

I saw Tom Bennett professionally on October 21, 2008 and I put Mr. 

Bennett in the hospital on October 22, 2008 to remove the gauze and 

packing from his nose. In treating Mr. Bennett on October 21 and 22, 2008 

I was able to observe the wound and noted that the area of the wound 

appeared to have been reopened and the area around the wound was 

swollen and red.

In reviewing the records of the neurologist, Stephen Herzog, M.D., 

I noted his comments concerning TMJ. In my opinion, based on 

examination of Tom Bennett in October 2008, he was not suffering from 

TMJ and TMJ was not the cause of his facial pain and injury to his sensory 

nerves.

The report plainly sets forth the standard of care applicable to Dr. Jassin, how he 

breached it, and how the breach caused Bennett’s injuries. Dr. Branch’s report

addresses how Dr. Jassin’s conduct has been called into question, as well as the causal 

relationship between Dr. Jassin’s alleged negligence and Bennett’s injuries. It is 

sufficiently specific; it is not conclusory. The report provided a sufficient basis for the 
Jassin v. Bennett Page 7

trial court to conclude that Bennett’s claim against Dr. Jassin has merit. We conclude 

that Dr. Branch’s report represents an objective good-faith effort to comply with the 

definition of an expert report.1 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(6).

Therefore, we conclude that the trial court did not abuse its discretion in denying Dr. 

Jassin’s motion to dismiss. We overrule Dr. Jassin’s second and third sub-issues.

Expert Qualification on Causation

In his first sub-issue, Dr. Jassin contends that the trial court abused its discretion 

in finding that Dr. Branch was qualified to tender an expert report on causation. 

Specifically, Dr. Jassin asserts, “The documents offered by Dr. Branch cannot be expert 

reports under the statute because he is not shown to be qualified to opine regarding any 

causal link between Dr. Jassin’s care at issue and the asserted damages.”2

A trial court’s decision on whether a person is qualified to offer an expert 

opinion in a health-care liability claim is reviewed under the abuse-of-discretion 

standard. Moore v. Gatica, 269 S.W.3d 134, 139 (Tex. App.—Fort Worth 2008, pet. 

denied); see also Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006). “[W]e defer to 

the trial court on close calls concerning an expert’s qualifications.” Hillcrest Baptist Med. 

Ctr. v. Payne, No. 10-11-00191-CV, 2011 WL 5830469, at *5 (Tex. App.—Waco Nov. 16, 

2011, pet. denied) (mem. op.) (citing Larson, 197 S.W.3d at 304-05, and Broders v. Heise, 

 

1 We agree with Dr. Jassin that Dr. Branch’s supplemental report’s reference to Dr. Jassin’s excessive use 

of Surgicel is merely observational; it attempts in no way to assert a standard of care and breach.

2 We reject Bennett’s assertion that Dr. Jassin failed to raise in the trial court his complaint that Dr. Branch 

is not qualified to give an expert report on causation. Dr. Jassin adequately raised the issue in his 

objections and in his motion to dismiss. See Baylor Univ. Med. Ctr. v. Rosa, 240 S.W.3d 565, 569 (Tex. 

App.—Dallas 2007, pet. denied).
Jassin v. Bennett Page 8

924 S.W.2d 148, 151 (Tex. 1996) (“The qualification of a witness as an expert is within 

the trial court’s discretion. We do not disturb the trial court’s discretion absent clear 

abuse.”)).

To be qualified to provide opinion testimony regarding the causal relationship 

between the alleged departure from accepted standards of care in a health care liability 

claim and the injury, harm, or damages claimed, the expert must be a physician who is 

otherwise qualified to render opinions on such causal relationship under the Texas 

Rules of Evidence. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(r)(5)(C). Rule of 

Evidence 702 provides: “If scientific, technical, or other specialized knowledge will 

assist the trier of fact to understand the evidence or to determine a fact in issue, a 

witness qualified as an expert by knowledge, skill, experience, training, or education 

may testify thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702.

Dr. Branch’s report and CV reflect that he is a practicing otolaryngologist. His 

report states:

During the course of my professional practice[,] I have performed 

approximately 200 sinus surgeries such as the surgery performed by Dr. 

Jassin on Thomas Bennett on October 16, 2008. On each such occasion 

where surgery was performed, I also conducted the follow up 

examination of the patient.

Additionally, in his causation opinion, Dr. Branch reported on his own 

examination and treatment of Bennett, stating that he “was able to observe the wound 

and noted that the area of the wound appeared to have been reopened and the area 

around the wound was swollen and red.” Dr. Branch concluded:

It is my opinion that the manner in which Dr. Jassin applied the 
Jassin v. Bennett Page 9

hard plastic suctioning device to the inside of the right nostril of Tom 

Bennett reopened the wound and caused damage to the sensory nerves in 

his sinus area, causing pain behind the patient’s right eye. Based on a 

reasonable medical probability[,] the damage to the sensory nerves may 

be a permanent condition. Tom Bennett relates that he still feels intense 

pain in his teeth, jaw and right eye, all of which began following the sinus 

surgery and follow up visit with Dr. Jassin on October 20, 2008. There is a 

temporal consistency between the onset of the facial pain following the 

sinus surgery and the follow up visit with Dr. Jassin.

We cannot say that the trial court abused its discretion in implicitly finding that 

Dr. Branch is qualified to provide an expert report on causation for the complications 

that allegedly arose from Dr. Jassin’s post-operative care following a sinus surgery that 

Dr. Branch says he has performed approximately 200 times, along with providing the 

follow-up care for those surgeries. See Sloman-Moll v. Chavez, No. 04-06-00589-CV, 2007 

WL 595134, at *4 (Tex. App.—San Antonio Feb. 28, 2007, pet. denied) (mem. op.) 

(holding that otolaryngologist’s expertise concerning standard of care for endoscopic 

sinus surgery “also qualifies him to opine on the cause in fact of postoperative 

complications that flow from that surgery”). “It is axiomatic that a physician trained to 

perform surgery is also trained to manage surgical complications.“ Id. (citing Keo v. Vu,

76 S.W.3d 725, 733 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)); see also Livingston 

v. Montgomery, 279 S.W.3d 868, 873-77 (Tex. App.—Dallas 2009, no pet.).3 And in that 

vein, it would also be reasonable for the trial court to have considered Dr. Branch’s own 

 

3

 Dr. Jassin also contends that Dr. Branch is not qualified to rule out the vaguely referenced possible 

diagnosis by a neurologist of a TMJ disorder as the cause of Bennett’s problems. Dr. Jassin asserts that 

Dr. Branch’s report and CV do not reflect any expertise in neurology or TMJ disorders. But in an expert 

report on causation, an expert is not required to rule out every possible cause of the injury, harm, or 

damages claimed. See Payne, 2011 WL 5830469, at *5 (citing Baylor Med. Ctr. v. Wallace, 278 S.W.3d 552, 

562 (Tex. App.—Dallas 2009, no pet.)). Therefore, whether Dr. Branch is qualified to rule out a TMJ 

disorder is not at issue in this appeal. 
Jassin v. Bennett Page 10

post-operative examination and treatment of Bennett in concluding that Dr. Branch is 

qualified on causation.

Furthermore, because Dr. Jassin did not dispute that Dr. Branch is a qualified 

expert on the standard of care applicable to Dr. Jassin’s treatment of Bennett for 

purposes of Chapter 74, it would be reasonable for the trial court to have concluded

that, for purposes of his expert report under Chapter 74, Dr. Branch is qualified on the 

causal relationship between the post-operative procedure and the alleged complication 

arising from it. See Payne, 2011 WL 5830469, at *7 (citing Whisenant v. Arnett, 339 S.W.3d 

920, 927 (Tex. App.—Dallas 2011, no pet.)).

We overrule Dr. Jassin’s first sub-issue and affirm the trial court’s order.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and 

Justice Scoggins

Affirmed

Opinion delivered and filed November 29, 2012

[CV06]