Articles Posted in Medical Malpractice

Last month, a state appellate court issued an opinion in a Texas wrongful death case involving allegations of medical malpractice. The case required the court to determine if the lower court correctly concluded that the testimony of the plaintiff’s expert was conclusory, and thus “no evidence.” Ultimately, the court found that each of the expert’s opinions was supported either by his experience or by his review of medical literature.

The Facts of the Case

According to the court’s opinion, the plaintiff had an episode where he became disoriented and confused while in a gas station parking lot. The plaintiff was taken to the hospital, where a series of tests were performed. The plaintiff was then referred to a neurologist.

The neurologist reviewed the tests and believed that the plaintiff suffered from aqueductal stenosis, which can lead to hydrocephalus (a build-up of fluid in the brain). The neurologist determined that a shunt should be placed in the plaintiff’s brain, and referred the plaintiff to a neurosurgeon.

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All Texas personal injury cases must comply with procedural requirements. For example, under the statute of limitations, all claims must be filed within a specified period after an accident. This and other requirements help the court system efficiently deal with the large number of cases that are filed each year.

Due to the increasing number of Texas medical malpractice cases, some of which are ultimately determined to be without merit, lawmakers have determined that Texas medical malpractice cases are subject to additional procedural requirements. It is essential that all Texas medical malpractice plaintiffs understand the nature of their claims and the procedural requirements that they must follow because a plaintiff’s failure to follow the requirements can result in a plaintiff’s case being dismissed.

The Notice Requirement

Under Texas Civil Practice and Remedies Code section 74, a plaintiff must notify each of the named defendants of her intention to file a lawsuit at least 60 days before the claim is officially submitted. This notice must contain a signed authorization for the release of the plaintiff’s relevant medical records.

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A Texas appeals court recently issued an opinion providing guidance for Texas medical malpractice claimants on the requirements for expert reports submitted in accordance with the Texas Medical Liability Act.

According to the plaintiff, she went to the emergency room at a hospital in Southeast Texas in 2012 complaining of chest and back pain. The plaintiff went to the hospital six times over the next few weeks complaining of continued pain, as well as shortness of breath, shoulder pain, neck pain, weakness in her legs and difficulty walking, and loss of bowel and bladder control. It was not until she was transferred to another hospital that she was finally diagnosed with a compression fracture in her spine, which ultimately rendered her a paraplegic.

The plaintiff sued the hospital and two hospital physicians for negligence. She alleged that the hospital failed to recognize the signs of a spinal compression fracture and did not take into account her history of osteogenesis imperfecta, which resulted in a delay of treatment and caused her paraplegia. The claimant submitted expert reports, and the hospital argued that the report failed to meet the requirements for expert reports under the Texas Medical Liability Act. The trial court agreed and dismissed the claims against the hospital.

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A win at trial is not always the end of the road for plaintiffs. Mistakes at trial can result in personal injury plaintiffs enduring a lengthy appeal process and, in some cases, even a new trial. In a recent case, the Texas Supreme Court ordered a new trial for a Texas medical malpractice plaintiff after the Court found the evidence presented at trial confused the jury.

The Facts of the Case

The plaintiff had a laparoscopic-assisted vaginal hysterectomy (LAVH) to have her uterus, ovaries, and fallopian tubes removed. During the surgery, her bowel was punctured, which resulted in serious post-surgical consequences. The surgery was performed by her doctor and a resident.

Before the surgery, the plaintiff signed consent forms, which stated in part that her doctor would treat her, along with “such associates, technical assistants, and other health care providers as they may deem necessary.” It also stated that the physician might require other physicians, “including residents,” to perform tasks “based on their skill set” and under the responsible physician’s supervision. She testified, however, that she was not told that a resident would actually perform part of her surgery.

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In a Texas medical malpractice case, the lower court dismissed the plaintiffs’ claim without giving them a 30-day extension to fix deficiencies in their expert reports. The case arose when a man was admitted to a medical center and was diagnosed with the narrowing of a carotid artery and the occlusion of a coronary artery. He had coronary surgery. After the surgery, he suffered from a lack of oxygen to the brain. The family decided to take him off ventilator support, and he died the next day.

His wife sued the medical center, a health system foundation, and a doctor under the wrongful death and survival statutes. She claimed medical negligence and gross negligence against the defendant, as well as respondeat superior against the entities.

The plaintiff claimed the entities were liable because the nurses didn’t institute several interventions to fix the critically low oxygen saturations and that they should be liable under the doctrine of respondeat superior because their negligence had caused the man’s death. They served two expert reports on time under Texas Civil Practices & Remedies Code section 74.351.

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Texas medical malpractice claims must meet certain requirements in order to continue in court. In a recent case, the Supreme Court of Texas issued a decision concerning a plaintiff’s requirement to submit an expert report in a medical malpractice case.In that case, a woman had cataract surgery on her left eye. Before the surgery began, a nurse anesthetist administered anesthesia by injecting anesthetic into the space behind the globe of her eye. The woman alleged that the nurse negligently inserted the needle into her left optic nerve, causing her permanent nerve damage and vision loss.

The woman sued the nurse and his employer. In support of her claim, she submitted an expert report, which she later amended. The expert stated that he believed that the woman suffered an injury to the left optic nerve as a result of the nurse’s administration of anesthesia. The expert believed that the nurse was negligent in part by damaging the woman’s left optic nerve by sticking it with the needle.

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A recent Texas dental malpractice decision concerned a plaintiff who sued a dentist for dental malpractice, breach of warranty, medical battery, and other causes of action. She claimed that in 2012, she’d asked her dentist to repair her damaged teeth. He told her she needed full dental implants and tooth extractions. She had a tooth surgery but continued to feel pain and discomfort afterward. Four months afterward, she reported her pain to the dentist. He then removed bone spurs from her mouth.

He also performed a second surgery to replace the implants with lower and upper dentures. After the surgery, he told her that her dentures didn’t fit right and suggested taking more dental impressions. He told her that the original wax impressions of her mouth were accurate, but the resulting dentures didn’t fit right, and he’d need to submit new impressions. He made new impressions, and in the following month, he surgically implanted six mini-implants in her upper mouth and lower mouth.

Later, she still had pain and got an infection. She went to another dentist several months later. He diagnosed her with having infected dental implants, infected root tips, and badly fitting dentures. He removed the dentures and put in temporary ones. A month later, she had a fifth implant surgery, and her tongue was cut, which caused pain for the next eight months. She sued the first dentist for dental malpractice, claiming he’d breached his duty as a health care professional by putting improper dentures into her mouth twice. She asserted his breaches of the standard of care had legally caused her to suffer serious economic, emotional, and physical harm.

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In 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.

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