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Houston court of appeals dismisses Pseudomonas infant death case

Texas tort reform requirements require attentive experts and experienced medical malpractice attorneys

Houston’s 14th Court of Appeals recently entered an opinion in a medical malpractice wrongful death claim involving the death of a twin infant who was born prematurely at 25 weeks into pregnancy. The case is styled C-HCA, Inc d/b/a Clear Lake Regional Medical Center v. Cornett; No. 14-1900580-CV, In the 14th Court of Appeals. You can read the court’s opinion here.

Body part versus baby

I’m always saddened when a parent experiences the death of a child because of medical malpractice. Many grieving parents call Painter Law Firm are shocked to learn that, despite Texas being a famously pro-life state, Texas civil laws apply different rights and treatments to the deaths of pre-born (fetal) versus born-alive babies.

Even if the baby is at 40 weeks of pregnancy and dies moments before delivery, for the purposes of a medical malpractice claim, courts don’t consider it a loss of a life, but rather a loss of a body part of the mother.

This essentially makes stillbirth or fetal death claims economically unviable to pursue.

Early nursing care

In the Cornett case, twins were born at 25 weeks gestation and placed in the neonatal intensive care unit (NICU) at Clear Lake Regional Medical Center. Although this was not a case that our law firm handled, we are very familiar with this hospital (now known as HCA Healthcare Houston Clear Lake) from numerous other medical malpractice claims.

At the trial court level, the plaintiffs alleged that one of the twins developed a Pseudomonas infection, resulting in that twin’s death from septic shock.

As with all medical malpractice cases, the Texas tort reform statute required the plaintiffs to produce one or more expert reports early in the litigation detailing the applicable standards of care, how they were violated, and how it caused harm.

To comply with statutory requirement, the plaintiffs produced expert reports from a single physician, who criticized the care provided by the hospital’s nurses, as well as physicians. In some circumstances, Texas law allows a doctor to provide nursing opinions, but in general I believe it’s a better course of action to have separate nursing and physician expert reports.

When investigating a hospital-acquired (nosocomial) infection case, an experience medical malpractice attorney will consider whether negligence led to development of the infection, or if it was more likely a situation of a delay in diagnosis and treatment. In many situations, there’s a lack of evidence to prove that negligence caused the infection itself.

Interestingly, though, in this case, the expert report discussed an email from the hospital’s vice president of quality that was sent to all employees with the subject line “Dress Code Fingernails.” The Clear Lake Regional Hospital email detailed that:

• There had been an increase in hospital acquired infections.

• Contributing factors in reducing the risk of hospital acquired infections included not wearing artificial nails and maintaining a short fingernail length.

• The hospital would be enforcing its dress code policy concerning fingernail hygiene.

I found the hospital email and policy to be promising evidence. To meet the statutory expert report standard, though, the expert report would have to identify how the hospital’s nursing staff violated the standard of care and caused the infant to develop a Pseudomonas infection. This is where the plaintiffs ran into a problem.

The appellate court noted that, presuming that the physician’s expert report stated a sufficient standard of care for the hospital, it was defective by never specifying how the hospital breached the standard of care.

The expert didn’t identify any nurse who violated the strict fingernail procedures that were implemented to prevent the spread of infection. Instead, the expert report made a conclusory statement that the hospital caused the spread of infections by failing to adhere to its established procedures.

The physician expert relied on the email from the hospital vice president of quality, but the appellate court noted that it was dated a year after the infant’s death and made no reference to this case. Further, the email itself did state that any nurse had violated the fingernail infection control policy.

The appellate court reversed the trial court’s decision to deny the hospital’s motion to dismiss is awarded attorney’s fees to the hospital.

We are here to help

If your family has been affected by poor labor and delivery or newborn care in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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