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Texas Court Affirms No Medical Malpractice with a Child Victim

boy-1563004In Quiroz v. Llamas-Soforo, a Texas appellate court considered a medical malpractice action brought by a mother on behalf of her son against a doctor. The son was born prematurely at 24 weeks and had less than a 50% chance of survival. He suffered from severe problems, including respiratory distress syndrome and sepsis. He also had cerebral palsy. His risk for retinopathy of prematurity was high. This is a disease arising out of premature birth in which the retina’s blood vessels do not develop normally and can result in blindness when not treated in a timely fashion.

Guidelines require weekly exams instead of daily exams because the procedure involved in the examination carries risks, such as increased heart rate and a halt in respiration. In this case, the doctor delayed the exam slightly due to a bacterial infection.

Although the baby was supposed to have a follow-up with the same doctor, he went to a different pediatric ophthalmologist, who diagnosed him with bilateral temporal detachments between the optic nerve and macula. The doctor referred him to a retina specialist, who observed retinopathy of prematurity (ROP) in both eyes, among other things.

Ten years later, the mom sued the first doctor who had delayed the exam. The mother alleged that the doctor was negligent in screening and treating her son’s ROP, and this caused her son complete blindness in one eye and reduced vision in the other. She also claimed that the doctor had failed to perform a proper cryotherapy on her son’s eyes. However, the jury found the doctor’s conduct was not the legal cause of his injury. She appealed, arguing among other things that the jury’s determination fell against the weight and preponderance of the evidence, necessitating a new trial.

The appellate court explained that if a plaintiff who has the burden of proof at trial challenges the sufficiency of a jury’s verdict, the plaintiff needs to demonstrate the verdict falls against the great weight and preponderance of the evidence. The appellate court only sets aside a verdict if the evidence shows the verdict is clearly wrong and unjust.

In this case, the mother had the burden of proof to show the doctor breached the standard of care, and this breach was the legal cause of her son’s ROP. In a medical malpractice case, the plaintiff needs to put forward testimony from a doctor in the same area of medicine as the defendant that the diagnosis or treatment constitutes negligence and that it was the legal cause of the plaintiff’s injuries. The mother claimed that the doctor was negligent for failing to follow an appropriate exam schedule, but she didn’t claim that he failed to meet the guidelines for ROP. His exam in fact had fallen within the guidelines with the exception of one gap, which was necessary due to a bacterial infection. The mother argued that the doctor shouldn’t have waited another week to perform cryotherapy.

The appellate court explained that evidence supported the jury’s finding that the published guidelines provided the relevant standard of care and that since the doctor followed the guidelines, he wasn’t negligent in his screening practice. The defendant had presented an expert that testified that if anything, the cryotherapy treatment was early because at the time of treatment, he hadn’t met the criteria set by the guidelines.

The mother also argued that the doctor didn’t perform effective cryotherapy because her son had a bad result. The appellate court explained that negligence couldn’t be inferred from the existence of an injury by itself. Ultimately, the trial court’s judgment was affirmed.

If you or your child is hurt due to medical malpractice, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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