Sharp's Texas Med Mal Update:

Since 1998 we have published and distributed free to clients, judges, and risk management executives the "Sharp's Texas Med Mal Update", a monthly newsletter of the previous thirty days' Texas Supreme and Appellate Court decisions on medical malpractice and related cases. Please feel free to browse the most recent 12 newsletters below.

The case summary contained in these newsletters is not meant to be a comprehensive discussion of the details of the case, but rather a brief outline of one or more of the more important legal principles illustrated by the decision. Please read the case report itself and obtain appropriate legal consultation as needed.

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For full-text opinion or further discussion, please contact William J. Sharp,
William J. Sharp & Associates, 3701 Kirby Dr., Ste. 850, Houston, TX 77098,
(713) 529 2400 voice, (713) 529 2426 fax
Board Certified, Personal Injury Trial Law, Texas Board of Legal Specialization
The commentary below is not legal advice and is not intended to create
an attorney-client relationship with the reader or ultimate consumer.
© 1998-2008 William J. Sharp. All Rights Reserved.

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May 08

Emergency standard of care. Tort reform statute CPRC §74.153, lowering applicable standard of care for emergency health care providers, did not violate equal protection.  Dill v Fowler, Eastland, 4/10/08

Unfounded assumptions in expert report. Expert’s opinion relied upon the assumption that ER notes were present in the floor chart and available for review by the defendant physicians.  Held, failure to dismiss was an abuse of discretion; remanded to trial court for possible extension of time to cure this deficiency.  Cooper v.  Arizpe, San Antonio, 4/9/08

Interlocutory appeal allowed. A motion to dismiss filed in response to a timely filed but inadequate report comes within subsection (b) of §74.351, and interlocutory appeal lies from such an order.  This opinion overruled contrary opinions from certain Texas appellate courts on this point.  Further, the plaintiff may use the report of a new expert to cure a deficiency in a challenged report. Lewis v.  Funderburk, S.Ct., 4/11/08 (similar/companion cases followed this holding)

Statute of Limitations in TTCA substitution. Under TTCA the defendant physician moved to dismiss case against him and have substituted in the governmental branch (UTHSC).  However, plaintiff filed his amended petition outside the statute of limitations, and UTHSC moved for summary judgment on that basis, which was granted.  Held, rev’d and remanded.  The substitution under CPRC §101.106 of the government entity for the employee physician is in the nature of a misnomer, and the amendment “relates back” to the date of the filing against the physician to toll limitations.  Bailey v.  UTHSC, San Antonio, 4/16/08.

Appeal of dismissal order proper after nonsuit. Defendant’s motion for expert report dismissal was denied, and an order signed.  Plaintiff thereafter nonsuited. Defendant appealed denial of dismissal, and the appellate court dismissed for want of jurisdiction.  Held, rev’d and remanded to appellate court.  When plaintiff nonsuited the case the denial order became a final appealable judgment.  The nonsuit did not have the effect of precluding appeal of the judgment, even though under Rule 162 the motion for dismissal sanction was not “pending” at the time of the nonsuit. Villafani v.  Trejo, S.Ct., 4/10/08 (similar/companion cases followed this holding)

No duty owed to third parties. Patient was admitted to hospital after suicide (self-stabbing) attempts.  Hospital attempted to obtain commitment order to protect patient from himself, but patient eloped from hospital before order was obtained.  Patient stabbed to death other individuals shortly thereafter, and their heirs sued the hospital for failure to protect the deceased from patient.  Held, summary judgment for the hospital affirmed.  The hospital was not on notice of any danger to others, and had no duty to protect them from patient.  Boren v.  Texoma Medical Center, Dallas, 4/30/08


April 08

Summary Judgment for doctor reversed.  Defendant’s “no-evidence” MSJ was granted and affirmed. The Supreme Court reversed and remanded.  The plaintiff filed deposition excerpts from her expert that created an issue of fact regarding whether the procedure was done correctly and whether it caused the injury; the testimony did not support a mere “possibility” or “belief” as the appellate court had  reasoned. Hamilton v Wilson, S.Ct.  3/28/08

Expert Report cases:

McKeever v Cerny, Corpus Christi, 3/27/08: Denial of dismissal affirmed.  ER expert was qualified on standard of care and causation to opine that ER doctordefendant’s negligence in failing to advise patient of spot on lung x-ray caused delay in diagnosis and treatment of cancer.

Parker v Simmons, Texarkana, 3/12/2008: DTPA and breach of contract allegations were so intertwined with medical care as to make the claim a “healthcare liability claim” requiring expert report; dismissal affirmed.

Rivenes v Holden: Houston (14th), 3/11/2008: Plaintiff’s report discussed ophthalmologist and hospital but not the ER doctor.  Held, dismissal as to ER doctor affirmed because “no report” was filed as to him.

March 08

Expert report of non-physician could be considered. In a case involving the responsibilities of an Emergency group contracted to a hospital, as a matter of first impression, held, the trial court could consider the expert report of a non-physician corporate lawyer to “connect the dots” between the corporate and healthcare providers’ individual responsibilities. Packard v. Guerra, Hou 14th, 2/28/08

Report based on incomplete records is sufficient.  Defendant complained that the plaintiff had not provided her expert the complete records from the defendant, and thus that the plaintiff failed to make a good-faith effort to comply with the report requirement.  Held, the completeness of the record supplied to the expert is not considered under the Palacios “four-corners” rule: “It is only necessary that the trial court conclude that the claims have merit by looking at the expert report itself.”. Findley-Smith v.Smith, Hou 1st, 2/28/08

Expert internist held qualified as to standard of care for psychiatrists.  Defendant physicians, both psychiatrists, were sued over the death of a patient who was on a suicide watch and allegedly died from a fentanyl patch.  Plaintiff’s expert report was prepared by an internal medicine doctor who claimed he was “familiar with the standard of care for asthmatic bronchitis, back pain, edema of the leg, congestive heart failure, and suicide watches, and is familiar with interpreting how autopsy results relate to the medical diagnosis during a patient's life.” Defendants objected that he was not qualified on the issue of the standard of care for psychiatrists caring for a patient under the circumstances of this case.  Held, denial of motion to dismiss affirmed.  Since the defendants acted “at least to some extent, in their capacity as medical doctors” the internist was qualified to opine on the standard of care. Sanjar v.  Turner, Hou 1st, 2/19/08

Good Samaritan defense case.  The defendant anesthesiologist’s “Good Samaritan” summary judgment was reversed by the Supreme Court, which found that a genuine issue of material fact existed as to whether the anesthesiologist was associated on the case by the attending physician, which would make the Good Samaritan statute’s protections unavailable to him. Chau v. Riddle, Sup. Ct., 2/15/08

Service of report must be after filing of petition.  The report was “provided” to defendant before the case was filed.  It was not thereafter “served” on defendant within 120 days after the case was filed.  Held, dismissal required.  Providing the report before filing the case does not qualify as “service” under §74.351. St. Luke's Episcopal Hosp. v. Poland, Hou 1st, 2/14/08

Pre-suit notice without records authorization still tolls limitations. Plaintiff timely sent the required pre-suit notice letter but failed to include the required records authorization. The authorization was not provided until after the 2 year statute of limitations had run, and suit was filed within 2 yr 75 days.  Defendant moved for summary judgment on limitations, arguing that the incomplete compliance with the notice letter requirement resulted in the statute not being tolled and limitations expiring before suit was filed.  SJ was granted; the appellate court reversed and remanded.  The failure to include the  release with the notice letter only allows defendant to obtain a 60 day abatement; the timely notice letter tolls limitations for 75 days even without the records authorization.  Hill v.  Russell, Austin, 2/14/08

Nursing home resident’s spider bite: no report required. The resident of the nursing home died from a spider bite.  Her heirs sued alleging premises liability theories, and no theories of negligence for care or treatment.  No expert report was filed; defendant moved for dismissal, which was denied.  Held, aff’d.  Under the definitions of a “healthcare claim” in §74.001 the alleged violations of “safety” here were not “directly related to health care”and thus not healthcare liability claims.  Omaha Healthcare Ctr.  v.  Johnson, Texarkana, 2/8/08

Sexual assault: report required as to facility but not nurse. Sexual assault of a resident by a nurse in a nursing home.  The action against the offending nurse was not a healthcare liability claim; the action against the facility for negligent hiring of the nurse was, and a report was required. Holguin v.  Laredo, San Antonio, 2/6/08

Objection to untimely report. Defendant need not object to untimeliness of expert report within 21 days of the end of the 120 day filing period; that requirement only applies to objections to the adequacy of a timely filed report. Poland v.  Grigore, Hou 1st, 2/1/08


February 08

TTCA case alleging misuse of fetal monitor. Plaintiff claimed nurses at government hospital were liable under the TTCA for failing to deliver baby when signs of distress were displayed on the monitor.  The nurses moved for dismissal claiming that the basis alleged for their liability was misuse of the monitor. The motion to dismiss was denied. Held, aff’d.  The court of appeals has jurisdiction to consider interlocutory appeal from denial of motion to dismiss based on an assertion of immunity.  However, the nurses were not entitled to dismissal because the claims could not have been brought against the hospital (the governmental entity).  This wasn’t a misuse of tangible property case, but a claim of negligence against the nurses. Lanphier v.  Davis, Texarkana, 1/10/08

Expert Report cases:
Nexion Health v.  Brewer, Tyler, 1/16/08: Nurse was not qualified to give opinion on causation; TC denied dismissal and granted 30 days to amend.  Held, appeal did not lie from the denial of the motion to dismiss, but mandamus was granted because since the plaintiff was not allowed to file a report from a new witness and the nurse would not be able to address causation the case should have been dismissed.

Davis v.  Webb, Hou (14th), 1/22/08: Optometrist is not a physician and therefore not qualified to author expert report as to an ophthalmologist.  “No report” dismissal affirmed.

Baker v.  Gomez, El Paso, 1/24/08: The expert report was deficient in that it failed to identify when the defendant should have taken the actions outlined by the expert, which was crucial to validity of the expert’s opinion.  Rev’d and remanded for 30 day extension.

Jones v.  King, San Antonio, 1/23/08: Report failed to adequately explain causation element.  It contained a series of conclusory statements of causation but no explanation of how the expert reached his conclusions.

Poland v.  Ott, Hou (1st), 1/31/08: Dismissal for failure to timely serve report upheld.  The report was given to the insurance carrier before suit, then not “served” on the doctor before the expiration of 120 days from filing suit.  Held, dismissal aff’d.  The mailing of the report to the carrier before suit was not sufficient; “service” on the doctor was required during the 120 days after suit was filed and this was not done.

January 08

Pre-suit depo under Rule 202 not allowed.  Father of deceased attempted to take depositions of physicians and hospital nurses under Rule 202 in clear contemplation of a healthcare liability claim.  Plaintiff  argued that he needed the information from the depositions to resolve questions about missing records and monitoring strips that couldn’t be answered from the obtainable records.  TC granted motion.  Rev’d and remanded on appeal.  Depositions of the potential defendants may not be taken pre-suit under CPRC Chapter 74. In re: Clapp, Dallas, 12/20/07

Statute of Limitations not tolled under “discovery rule”. Plaintiff had a sponge left in her in 1995.  She remained unaware of it until 2005. She had intermittent pain and problems during that time, which she alleged in her 2005 lawsuit were related to the sponge.  Defendants successfully moved for Summary Judgment, and plaintiff appealed, claiming violation of the Open Courts guarantee because she had been unable to discover her cause of action until 2005.  Held, aff’d.  The plaintiff failed to establish a fact issue that she could not have discovered her injury before the two year statute ran. Walters v Cleveland Regional Medical Center, Hou(1st), 12/20/07

Jury verdict affirmed based on expert’s causation opinion. The patient died from an overdose of Dilaudid, being administered by PCA pump while hospitalized.  The jury found for the physician defendant but against the hospital, because the nurses had failed to monitor the administration of the Dilaudid.  The hospital appealed the jury finding on proximate cause, challenging the supporting evidence from the plaintiff’s expert on the grounds that his opinions were based on assumptions and not supported by a detailed explanation.  Held, aff’d.  The court examined the testimony of the plaintiff’s pain management physician expert and concluded that he used objective information and his expertise to reach a reasonable conclusion, and that the verdict was not against the great weight of the evidence on this issue. McAllen Hospitals v.  Muniz, Corpus Christi, 12/13/07

Expert Report cases:

Objections waived. Defendant appealed trial court’s grant of 30 day extension to remedy inadequate expert report.  Plaintiff filed the report of a nurse addressing causation in case against a nursing home; the defendant waited 120 days before challenging this and claiming that “no report” was filed since a nurse cannot opine on medical causation.  The appellate court held the trial court “could grant this extension”.  (The cases prohibiting filing a new report from a new expert are not addressed.-Ed.)  It was further held that in the appeal of the denial of the motion to dismiss the defendant could not appeal the granting of the 30 day extension.  Finally, the court held that defendants objections were waived because they were not filed within 21 days of service of the report. Nexion Health v.  Brewer, Tyler, 12/12/07

Denial of Motion to Dismiss for defective reports affirmed.  Plaintiff sued for blindness in one eye following eye surgery.  Defendant unsuccessfully challenged the reports of the plaintiff’s expert physician and nurse in the trial court.  Held, aff’d.  The defendant’s objections were adequate in that they were timely filed and alleged that the reports were deficient under the statute.  Defendant was permitted to elaborate on the objections in the later filed motion to dismiss.  However, the appellate court held that the experts were qualified and the reports adequate.  The nurse had experience with post-op “cold” therapy (one of the issues involved) and the physician was a qualified ophthalmologist.  The reports adequately set forth their opinions. Baylor University Medical Center v.  Rosa, Dallas, 12/7/07

Denial of dismissal rev’d and remanded.  Expert’s report simply stated that the injury was “directly related” to the alleged negligence, without further explanation or justification for this conclusion.  Plaintiff failed to file a response to the motion to dismiss or a request for a 30 day extension.  Held, the report was inadequate, remanded for dismissal.  U.S. Imaging, Inc.  v.  Gardner, San Antonio, 12/28/07

December 07

Chapter 74 doesn’t violate Separation of Powers. Dismissal for failure to file report was affirmed. Challenge based on Separation of Powers provision of Texas Constitution rejected by the appellate court. Wilson-Everett v. Christus Healthcare, Hou(14th), 11/29/07

Pre-suit deposition allowed to investigate products claim.  The defendant sought mandamus of an order allowing a pre-suit deposition of the surgeon in a case involving implantation of a knee prosthetic.  Plaintiff claimed the purpose of the deposition was to allow discovery of a potential product liability claim against the manufacturer, “promising” not to delve into standard of care issues.  The trial court allowed the deposition, but the appellate court found that the order was overbroad because it allowed the plaintiff to investigate a potential health care liability claim, which was forbidden under Chapter 74, rather than limiting questions to those concerning the source and handling of the device.  The mandamus was conditionally granted so that the order could be reformed to “exclude questions prohibited by Section 74.351.” In re Temple, Texarkana, 11/8/07

Expert report cases:

Ogletree v.  Matthews, Sup.  Ct., 11/30/07:  Defendant appealed the denial of dismissal before expiration of the thirty day period granted by the trial court for revision of the defective report.  Held, lack of appellate jurisdiction affirmed.  Appeal cannot be filed until after the 30 days has expired.

Patel v.  Williams, Hou(14th), 11/6/07: Denial of dismissal upheld.  The report was challenged because it did not state the standard of care applicable to the defendant, but contained rather statements about the drug being inappropriate, not approved by the FDA, etc.  The court held that no magic “standard of care” language was required to allow these statements to be considered adequate “standard of care” statements.  The report further described a long series of factual events commencing with administration of the medication through subsequent complications involving infections, nursing actions, etc., which the court held was an adequate statement that the expert felt the medication caused these events and the outcome.

Palafox v.  Silvey, El Paso, 11/1/07: Elderly person died from aspiration of solid food. Orthopedic plaintiff’s expert who did not show he was actively practicing in hospitals at time of alleged negligence was qualified to opine regarding defendant orthopedic on issue of standard of care for post-op diet orders.  Additionally, psychiatrist who worked with elderly patients was qualified to address basic medical issues involving swallowing.

Acosta v.  Chheda, Hou(1st), 11/1/07: Dismissal affirmed.  The report was not served on the defendant by either filing with the court or email to the attorney. Fax service would have been appropriate, but the record did not support such service having occurred.

November 07

2-year statute of limitations upheld as constitutional under open courts provision of Texas Constitution.  Mother of injured patient was on notice of potential claim against second set of defendants when alleged negligence occurred, and waited 19 months to file against first set of defendants and then another 22 months to file against second set of defendants. MSJ for defendant affirmed. Yancy v.  United Surgical Partners, S.Ct., 10/19/07

No personal jurisdiction. Special Appearance for want of personal jurisdiction denied defendant physician, rev’d and rendered on appeal.  Physician was doctor on a cruise ship in international waters, sued by patient on ship whose feeding tube came out.  Held, there were insufficient contacts between the physician and Texas to support jurisdiction.  Case contains good discussion of minimum jurisdictional contacts requirements.  Uche v. Allison, Hou(1st), 10/11/07.

Superseding cause not supported, Damages excessive.  Defendant appealed a jury verdict for plaintiff regarding a ruptured ectopic pregnancy.  Defendant OB was found negligent for failing to diagnose an ectopic pregnancy.  He argued an insufficiency point by claiming that a superseding cause occurred when a subsequent physician also failed to diagnose the ectopic pregnancy.  Held, the evidence was sufficient for the jury to conclude that the defendant was negligent.  Superseding cause does not apply where the alleged act of negligence was the same for both physicians.  Further, the damage award of $1 million for mother’s loss of society with deceased 26 y.o. daughter was reversed as factually insufficient given the facts that the daughter had moved out in the 9th grade and there was “sparse” testimony about how the death had affected the mother. Hawkins v.  Walker, Beaumont, 10/4/07

Expert Report cases:

Bohannon v.  Winston, Beaumont, 10/4/07: Dismissal affirmed; the defendant did not try to evade service of the report.

Lee v.  Boothe, Dallas, 10/3/07: Plaintiff cannot avoid  report requirement by trying to recast med mal claims as DTPA, assault or fraud.

Walgreen v.  Heiger, Hou(14), 10/11/07: Report saying injuries were “consistent” with alleged negligence not a sufficiently “ultimate” opinion on negligence.

Hare v.  Graham, Fort Worth, 10/18/07: Suit against pathologist for performing autopsy without consent was not a “healthcare” claim, thus, no report was required.

U.T. Health Science Ctr Houston v.  Gutierrez, Hou(1st), 10/11/07: “Service” of report within 120 days is required per TRCP 21a; receipt by defendant of “courtesy” copy is insufficient, requiring dismissal.

Comstock v.  Clark, Beaumont, 10/25/07: Anesthesiologist was qualified to opine about causation in case involving hypoxic brain damage from dental anesthetic.

Mallat v.  Reeves, Dallas, 10/26/07: Anesthesiologist was held qualified to address the standard of care for managing NPO status of patient as to both defendant anesthesiologist and gastroenterologist.  However,  the report did not distinguish between the standards applicable to the two defendants and was thus inadequate.  Remanded for consideration of 30-day extension request.

October 07

TTCA-- “could (not) have been brought”. Suits were filed following bariatric surgery procedure (Hall case) and death from pediatric cardiologic condition (Turner case).  Defendant physicians, employed by state subdivision, successfully moved to dismiss under the TTCA.  Held, both rulings reversed.  The allegations were of negligence, not use of a tangible object or other basis for dismissal of the physician. Hall v.  Provost, Dallas, 9/5/07 and Turner v.  Zellers, Dallas, 9/4/07

TTCA appellate jurisdiction.  Defendant physician’s motion to dismiss under TTCA was denied and he sought interlocutory review.  Held, no jurisdiction. The interlocutory appeal accorded a defendant for denial of a motion for summary judgment seeking TTCA dismissal does not apply to a motion to dismiss, declining to follow Phillips v. Dafonte.  The procedural safeguards inherent in a MSJ are not present for a motion to dismiss.  Hudak v.  Campbell, Dallas, 9/5/07.

Expert Report cases:
Voosen v.  Wissa, San Antonio, 9/26/07: Anesthesiologist challenged expertise of orthopedic surgeon to offer report regarding anesthesiologist’s involvement in patient’s ankle surgery.  Based on the ortho’s assertion he was qualified to opine about how any physician should take an H&P and perform an examination when the patient has an ankle infection, the appellate court affirmed the trial court denial of the motion to dismiss.

Maxwell v.  Seifert, Hou(14th), 9/18/07: Plaintiff could not avoid dismissal of case for inadequate report by adding informed consent and res ipsa claims.  Hospital chart reports from treating physicians did not qualify as expert reports-- 30 day extension denied.

Alexander v.  Terrell, Beaumont, 9/13/07: Report was adequate as to survival claims, but since it did not causally connect malpractice claims to patient’s death, it was inadequate as to wrongful death claims, and those should have been dismissed.

September 07

MSJ affirmed. Pro se plaintiff submitted incompetent evidence in response to defendant’s MSJ in case involving anti-coagulation therapy. Summary Judgment for defendant doctor aff’d. Ly v.  Schmidt, Austin, 8/28/07

Mental Anguish award reversed. Hospital appealed judgment on adverse jury verdict in  vbac/pitocin case.  The appellate court affirmed several insufficiency points citing conflicting evidence regarding nurses’ recollection and charting vs.  family members’ testimony and a videotape of the birth, and deferring to the jury’s role as sole judge of the credibility of the witnesses.  The court affirmed the damage award of $5 million for future medical, rejecting Spohn’s contention that such damages had to be proven within “reasonable medical probability.” The court held that the standard was “reasonable probability.” It further refused to find that there was insufficient evidence of the child’s life expectancy, which had been estimated by the plaintiff’s expert at 37 years based not on other brain damaged patients but on spinal injury victims.  Also held, the submission of a broad form negligence issue was proper here since the only “theory” of liability was negligence.  The court reversed a mental anguish award of $2 million to the parents on the grounds that parents may not recover m.a. for a non-fatal negligent injury to achild (no bystander recovery).  Christus Spohn v.  de la Fuentes, Corpus Christi, 8/16/07

EXPERT REPORT CASES:

Methodist v.  Thomas, Hou(14), 8/21/07: Rpt from a hospital administration expert was inadequate to address causation because he was not a medical doctor. Remand was not available because the deficiency couldn’t be cured by amending the report, and plaintiff may not file a wholly new report from a new expert under the 30 day extension.  Held, rev’d and dismissal rendered.

Baylor Univ.  Med.  Ctr.  v.  Biggs, Dallas, 8/28/07:  Denial of hospital’s and physicians’ motions to dismiss reversed and remanded for 30 day extension.  The plaintiff’s nephrology  transplant expert was qualified to opine about obtaining informed consent from patients awaiting transplant surgery; however, his report was inadequate as to Baylor because it failed to mention the hospital or nurses.  Other expert reports as to the doctors failed to adequately discuss the issue of their roles in obtaining informed consent or the causation element of informed consent. 

August 07

Dystocia defense verdict affirmed. Jury verdict for defendant hospital affirmed in a shoulder dystocia case.  Evidence that the nurses’ application of fundal pressure occurred after the shoulder and head were delivered was a sufficient basis for the jury finding.  Inferential rebuttal issues on independent cause and unavoidable accident are appropriate where no defendant is the cause and the cause is not foreseeable. Banks v.  Columbia Hospital, Dallas, 7/12/07

Defendant admitted negligence.  Jury verdict for plaintiff affirmed in burn case where too-hot water bottle was placed under patient during surgery.  Defendant challenged plaintiff’s expert as unqualified, but the court found that it did not have to reach the issue since the defendant admitted negligence at trial. Medina v.  Hart, Corpus Christi, 7/5/07

TTCA case. The doctor moved for dismissal under the TTCA.  Held, denial of motion affirmed.  The case could not have been brought against the state subdivision because the allegations were of negligentconduct of the doctor that did not operate to waive sovereign immunity. Kanlic v.  Myer, El Paso, 7/26/07

EXPERT REPORT CASES:
Lal v.  Harris Methodist Hospital, Fort Worth, 7/12/07:  30 day extension not available to “correct” untimeliness of service of a report.

King v.  Cirillo, Dallas, 7/19/07: Agreed extension of deadlines for production of testifying expert reports did not extend deadline for §74 report.

Thomas v.  Alford, Hou(14th), 7/19/07: Multiple defendants and multiple reports involved.  Dismissal as to Dr.  Alford was reversed, because the plaintiff’s expert report addressed sufficiently specifically the breaches of standard attributed to this defendant. The dismissal as to Dr.  Malone was affirmed because the expert report did not express the opinions about breach with sufficient specificity, and did not demonstrate the expert’s training to opine about cancer treatment. Dismissal aff’d in part and rev’d and remanded in part.

July 2007

Informed consent.  Plaintiff sued alleging failure to obtain informed consent when surgeon performed stellate ganglion block during surgery despite patient’s previous refusal of procedure.  Held, rev’d and take nothing judgment rendered. The patient was well-aware of the risks from having the procedure performed twice before. Schaub v.  Sanchez, Sup.Ct., 6/22/07

Proximate Cause testimony.  In death of patient with multiple medical problems,  plaintiffs alleged the death was due to patient’s fall in hospital. Equivocal testimony of 4 experts was insufficient to establish proximate causation.  Jury verdict for plaintiff reversed and rendered.  Christus Hospital v.  O’Banion, Beaumont, 6/21/07

TTCA dismissal.  Plaintiff sued physician employed by  governmental hospital alleging misuse of tangible property, i.e., a screw component of an orthopedic fracture repair device.  Defendant doctor moved to dismiss under the Texas Tort Claims Act, alleging the suit could have been brought against the government entity.  The trial court denied the motion, but on appeal the court reversed and remanded instructing the trial court to dismiss the case as to the physician.  The plaintiff unsuccessfully attempted to claim that the physician committed a “failure to use” the screw rather than a “misuse”. Sheth v.  Dearen, Hou(14th), 6/07

Informed Consent.  Plaintiff consented to hernia surgery and other surgery that the physicians found “advisable”.  During the procedure the surgeons removed part of diseased fallopian tubes, rendering patient infertile.  Patient sued for, inter alia, battery. Summary judgment for defendant physicians reversedand remanded.  The language authorizing “advisable” procedures could not be read broadly enough to authorize the fallopian tube surgery. Defendant physicians’ position that there could be no cause in battery because the tubes were already diseased to the point of infertility was insufficient to support summary judgment on the issue of causation of harm. Rush v.  Honeycutt, Corpus Christi, 6/15/07

Use of superseded pleadings; preserving error re: scope of cross.  In voir dire plaintiff’s counsel stated that nonsuited doctors’ conduct "could have been brought before this Court in this trial" but "both sides have not done that at this trial.” This opened the door to defendant’s use of plaintiff’s superseded pleadings to show that plaintiff had alleged negligence on the part of doctors not present as parties at trial.  Plaintiffs failed to preserve error regarding scope of cross-examination of their expert by not objecting past the first question or getting a running objection. Bay Area Healthcare v.  McShane, Sup.Ct., 6/8/07

EXPERT REPORT CASES:
120 day deadline is strictly enforced; that defendant didn’t appear until after the period expired did not operate to extend it or support a constitutional challenge. Smith v Hamilton, Beaumont, 6/21/07

Neurosurgeon held not qualified as expert against a nurse practitioner because he failed to state he knew the standard of care for them or to show he had trained or supervised them.  Also, the expert must be familiar with the “standard of care” applicable to the defendant, not just treatment of the condition involved in the claim. Simonson v.  Keppard, Dallas, 6/4/07

June 2007

Protection from ex parte communication affirmed.  The plaintiff produced the statutorily required release allowing “verbal” communications by the defendant with the plaintiff’s health care providers.  Plaintiff then moved for a protective order prohibiting such communications alleging the treating doctors had information that was “not relevant and subject to the physician patient privilege”.  The motion was granted, and defendant sought mandamus.  Held, aff’d.  The statute did not change existing law allowing ex parte communications, nor does it prohibit a trial court from entering an order to protect the plaintiff from disclosure of confidential irrelevant information. In re: Collins (Tyler, 5/14/07)

Arbitration denied.  Plaintiff mother was admitted for care and signed a power for health care in favor of her daughter.  Daughter signed arbitration agreement and other documents.  Mother later sued facility and facility unsuccessfully attempted to compel arbitration. Facility appealed.  Held, aff’d.  The power only authorized the daughter to make health care decisions, not to waive civil rights such as jury trial.  The daughter did not have apparent authority to execute arbitration agreement because the mother took no action to confer such authority, and granting the power for health care was not sufficient.  The opinion contains a good discussion of the jurisdictional considerations under and interplay between the Federal and Texas state arbitration statutes; is a must-read for anyone who may handle these agreements. Texas Cityview Care v.  Fryer (Fort Worth, 5/24/07)

EXPERT REPORT CASES:
Workers' compensation insurer asserting a subrogation claim in a medical malpractice action may rely upon an expert report filed by the injured employee to satisfy the expert report requirement. Smith v Financial Ins.  Co.(Eastland, 5/3/07)

Report which did not address the doctor at all was so deficient as to constitute “no report” resulting in dismissal. Apodoca v Russo (Austin, 5/5/07)

Report failed to specifically name the defendant physician as the one who breached the standard and was thus inadequate, but plaintiff was entitled to 30 days to cure the deficiency. Austin Heart, P.A. v.  Webb (Austin, 5/9/07)

Two reports were filed against the defendant physician.  The report of the nurse did not mention the physician at all, and thus was “no report” as to him.  Its filing did not start the 21 day period for filing objections to that report.  The report of the physician was timely objected to where the objections were served and filed within 24 days of the service of the report under TRCP 21(a).  Dismissal affirmed.  Jain v.  Stafford (Fort Worth 5/24/07).

Causation opinion was speculative where expert did not state how having one aide rather than two carry a nursing home resident resulted in fracture of her femur.  No abuse of discretion in granting the dismissal. Myers v.  Golden Palms Retirement (Corpus Christi, 5/24/07)

Nonsuiting and then refiling does not re-start the 120 day report period. Daughtery v Schiessler (Eastland, 5/17/07)




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