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 doctordefendant’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 achild (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
negligentconduct 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 reversedand
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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