Articles Posted in Medical Malpractice

Published on:

open casketThe Texas Court of Appeals recently considered a wrongful death claim allegedly arising out of medical malpractice. The plaintiff had filed a survival and wrongful death lawsuit against a hospital, claiming it was negligent and grossly negligent in treating the plaintiff in 2014. The hospital answered, denying all of the allegations included in the plaintiff’s lawsuit.

The plaintiff served an expert report from a nurse on the hospital after that. The hospital moved to dismiss the nurse’s report on the ground that she wasn’t qualified to offer opinions about causation. The plaintiff responded by asking for 30 days to fix the deficiencies in the report. The court sustained the hospital’s objections and granted a 30-day extension to fix the report defects. Trying to fix the deficiencies, the plaintiff served the report of a doctor on the hospital.

The hospital sought to dismiss and objected to the expert reports. It argued that the doctor didn’t explain the necessary ways in which there had been a breach in the professional standard of care and how that caused the injury. It also argued that the doctor’s report simply asserted that the staff had allowed the tracheostomy tube to get dislodged, and there was no detail to support this claim.

Continue reading →

Published on:

hospital roomIn a recent interlocutory appeal in Texas, a defendant nurse appealed a trial court’s denial of her motion to dismiss a plaintiff’s health care liability claims. These claims were filed against three defendants. The plaintiff had sought treatment from a clinic and its doctor for several reasons, including painful urination. Since the doctor wasn’t available, a nurse practitioner treated her and diagnosed her with a urinary tract infection, a yeast infection, and vaginosis, based on the results of a urinalysis. The nurse prescribed medication.

Five days later, the plaintiff came back with worsened symptoms. At a pelvic exam, the nurse allegedly told students who were observing that it was gonorrhea. In her petition, the plaintiff claimed she’d questioned the nurse about this diagnosis, since she’d been in a monogamous relationship for six months and hadn’t had sex with anybody else for years before that. The nurse allegedly told her that her boyfriend probably gave her gonorrhea.

The plaintiff’s petition claimed that the gonorrhea diagnosis was mistaken, and in the petition, she pled claims for failure to disclose risks, lack of consent, intentional infliction of emotional distress, breach of confidential communications, intrusion on seclusion, public disclosure of private facts, and negligent misrepresentation. She asked the court for damages to compensate for her mental anguish and physical pain.

Continue reading →

Published on:

braceletsIn Knox v. Rana, a Texas appellate court considered the wrongful death claim of a woman’s children against the cancer center where she’d been treated. The woman had survived endometrial and breast cancers and was getting radiation treatment from a defendant doctor for a basal cell carcinoma lesion on her nose. The doctor ordered a PET scan, based on the woman’s prior history of cancer. The scan showed she had a mass that seemed like metastatic disease in her pelvis. However, the doctor never told her this or ordered her to obtain treatment.

Later, the defendants would provide evidence that the mother was informed about the worrisome nature of the mass in her pelvis and was asked to get a follow-up in three months. She didn’t undergo the follow-up and in 2012 was diagnosed with metastatic cancer. She passed away in 2013 at age 76, due to her metastatic cancer.

The woman’s children filed a lawsuit against the doctor and cancer center. The defendants filed a motion for summary judgment. The lower court granted the motion. The children appealed. The appellate court explained that the Texas Supreme Court had held that the Wrongful Death Act authorizes recovery for injuries that actually cause death, rather than those that cause less-than-even odds of avoiding death.

Continue reading →

Published on:

operating roomIn JSC Lake Highlands Operations, LP v. Miller, a Texas appellate court considered causation in a wrongful death case. The case arose when a woman was discharged from the hospital and admitted to JSC (the defendant’s facility) for rehabilitation. The following month, she received a phone call from her daughter, who thought she sounded strange. That evening, she told the staff that her dental bridge was missing, but the staff couldn’t find it.

The staff called the woman’s other daughter and told her that her mother was upset about losing the bridge. The daughter sent her husband to look for the bridge at the facility. He couldn’t locate it. The daughter spoke to her mother that evening and thought that her voice sounded raspy. The woman started coughing and showing chest congestion shortly thereafter. A doctor ordered a chest x-ray and Robitussin. The staff didn’t tell him her bridge was missing.

The chest x-ray said little more than that the heart was normal in size and configuration. The doctor was told of the results and ordered medication. The woman was found unresponsive in her room early in the morning. She was brought to the hospital but was unresponsive with seizure-like movements.

Continue reading →

Published on:

teenager-1438118-e1462296370173In Durham v. Children’s Medical Center of Dallas, a Texas appellate court considered whether the Texas Constitution’s Open Courts Clause stopped the statute of limitations from running in a deceased 12-year-old’s survival and wrongful death claims against her health care providers.

The case arose from the medical care of the decedent, a 12-year-old girl born in 1993. In 2006, she was seriously hurt in Hawaii. Among other things, the Hawaii doctors found that she had a dilation of the ascending aorta that was not trauma-related. They recommended she follow up with a Texas cardiologist.

She was transferred to the Children’s Medical Center of Dallas with the help of her general pediatrician. However, the pediatrician didn’t see her after her transfer or before she died. She was treated by a Dr. Rupp and a nurse practitioner, and then she was discharged on the same day and told to come back for follow-up orthopedic surgery. That day, she was evaluated by Dr. Copley and then operated on. She stayed at the Children’s Medical Center for a few weeks, receiving care also from Dr. Holland and Dr. Kines, and then she was transferred again to another hospital, Scottish Rite. Two years later, at age 15, she became ill and died of aortic rupture.

Continue reading →

Published on:

surgeon-3-1562055In Christus v. Baird, a hospital appealed from a Texas trial court’s order related to expert reports in a medical malpractice case. The case arose when the plaintiff had surgery to remove a part of her thyroid gland. The surgeon didn’t remove the correct lobe but instead removed the thymus gland. She had another surgery at a different hospital to remove the left lobe.

The plaintiff sued the surgeon and his professional association, alleging that the surgeon was negligent in not removing her thyroid gland and instead removing her thymus. She served both the surgeon and association with an expert report.

The surgeon moved to designate the hospital as a responsible third party and denied his negligence. He claimed the hospital was responsible for the woman undergoing a subsequent surgery because the hospital’s cryostat wasn’t available during the surgery, there was no backup, and the hospital hadn’t told him a cryostat wouldn’t be available under after he’d started operating.

Continue reading →

Published on:

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.

Continue reading →

Published on:

medical-1240480In Mangin v. Wendt, the court considered a medical malpractice appeal. The trial court had ruled that the plaintiff’s medical expert reports that were filed in connection with the suit were sufficient, and the case could go forward. The doctors appealed.

The decedent was admitted to the hospital with chest pain. A cardiologist performed an angioplasty and implanted a stent. While working on the decedent, he perforated the plaintiff’s artery, and an anesthesiologist administered anesthesia. When the anesthesiologist tried to intubate the patient, he accidentally put the tube in the esophagus, resulting in the patient’s oxygen dropping and the patient suffering cardiac arrest. They ventilated the decedent and corrected the perforated artery through further surgery. However, the loss of oxygen caused him permanent brain damage, and he died two days later.

The decedent’s estate and two daughters sued the doctors and the hospital. They filed three expert reports on time in accord with Chapter 74 of the Texas Civil Practice and Remedies Code. The doctors filed motions to dismiss on the grounds that the expert reports were inadequate. After both the motions and the plaintiff’s responses were filed, one of the accused doctors provided a discovery response that stated the true name of the anesthesiologist that cared for the decedent and made the intubation error. The trial court denied the motions, and the doctors appealed.

Continue reading →

Published on:

surgery-1482617In Verticor, Ltd. v. Wood, an appellate court considered whether personal injury lawsuits against a medical device manufacturer count as health care liability claims for the purposes of the Texas Medical Liability Act (TMLA). The case arose when a surgeon treated a herniated disc in the plaintiff’s lumbar spine by using a device called the “Eclipse Sphere,” which was manufactured by the defendant. After suffering complications, the plaintiff sued the doctor and the manufacturer.

The plaintiff argued that the surgeon had used the device in a non-fusion procedure, although it was only approved by the FDA for use in fusion procedures in the lumbar region. The FDA had also required that the device’s packaging and manuals include a warning about how its safety in non-fusion procedures hadn’t been established yet.

The plaintiff argued that the doctor was professionally and grossly negligent in using the device in an off-label, experimental fashion and not getting his informed consent for it. He also claimed that the manufacturer had solicited the off-label use, alleging strict liability theories of failure to warn, negligent marketing, a breach of the implied warranty of merchantability, and fraud. The manufacturer claimed as an affirmative defense that it is a health care provider as defined by the TMLA.

Continue reading →

Published on:

spinal-tap-1197804-e1449546976709In Pisharodi v. Saldana, a Texas appellate court considered a medical malpractice case arising out of a 54-year-old woman’s death. The lawsuit was brought by the woman’s surviving children against the woman’s neurosurgeon. The neurosurgeon had treated the pain suffered by the woman in her lower back. He prescribed physical therapy, and when that didn’t work, he recommended an epidural pain block and injection in the L4-L5 part of her spine instead of surgery. He performed the procedure on her using morphine, depo medrol, a steroid, and a local anesthetic.

After the procedure, she returned to the neurosurgeon’s office still in pain. Accordingly, he performed a posterior lumbar decompression with a discectomy, fusion, and instrumentation. He discharged her five days after this procedure, sending her to rehabilitation.

Several months later, she came back, complaining once again about lower back pain. He recommended another epidural steroid injection. The same combination of medications was used as the first time. After the procedure, he left her at the clinic and went to assist with a surgery. Later, he got a phone call from his office telling him that she was nauseated and diaphoretic. Emergency services were called. She tried to talk and collapsed without a pulse. The clinic tried cardiopulmonary resuscitation.

Continue reading →