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Surgical retractor moves during brain surgery, causes devastating brainstem injury

Appellate court addresses what expert reports must say when it's unclear who was responsible

The Corpus Christi—Edinburg Court of Appeals entered an opinion addressing a common issue in operating room surgical medical malpractice cases. That issue is: How does a plaintiff provide who made the mistake when the medical records don’t spell it out. The case is styled Doctors Hospital at Renaissance, Ltd. V. Lugo; No. 13-20-00406-CV.

According to the lawsuit petition and plaintiffs’ expert reports, a neurosurgeon performed brain surgery on the patient at Doctors Hospital at Renaissance. After the patient woke up from surgery, she was paralyzed on the left side of her body and head weakness on her right side.

Both of these deficits are signs of brain damage. An MRI was ordered and showed that a device used during surgery, a surgical retractor, had migrated and gone into the patient’s brainstem. The patient’s final diagnosis was “brainstem injury during surgical procedure.”

The brainstem connects the brain to the spinal cord and cerebellum. It controls critical functions, including breathing, maintaining consciousness, and regulation of blood pressure, heart rate (pulse) and sleep.

As with all Texas medical malpractice cases, the plaintiff was required to produce a medical expert report within 120 days of the defendant filing an original answer. To satisfy this tort reform requirement, the plaintiff timely served a report from a board-certified neurosurgeon and Professor of neurosurgery, who detailed his opinion that:

• It was the sole responsibility of the surgeon to manage the placement and migration prevention of the surgical retractor.

• The unintentional migration of the brain retractor caused severe and permanent damage to the patient’s brainstem and severe and permanent neurological impairment.

After the expert report was produced, the plaintiff took the deposition of the treating neurosurgeon. The neurosurgeon testified that, at some point during the surgery, he observed that the surgical retractor had migrated into the patient’s brainstem. He testified that the migration of the surgical retractor may have been caused by physical contact by: (1) the neurosurgeon himself; (2) the surgical tech, who was an employee of Doctors Hospital at Renaissance; or (3) physical contact by surgical equipment, most likely the tube from a suction device, caused by either the neurosurgeon or surgical tech.

To make sure that the right defendants were in the lawsuit, the plaintiff amended the petition to name Doctors Hospital at Renaissance as a defendant.

Next, the plaintiff timely produced a supplemental report from the neurosurgery expert, detailing the possibility that the migration of the surgical retractor may have been caused by the surgical tech, a hospital employee. Additionally, the plaintiff timely served an expert report from a certified surgical technologist and instructor. Both reports detailed how it’s part of the surgical tech standard of care to prevent anything from happening that would cause the retractor to migrate.

Needless to say, all of this went over like a lead balloon at the hospital. The hospital objected to the expert reports and filed a motion to dismiss the claim, arguing that they were speculative and conclusory, relying on assumptions, conditions, and suppositions. The expert reports from the neurosurgeon and surgical tech were based on the treating neurosurgeon’s testimony that he didn’t recall contacting the retractor, but the surgical tech may have.

To me, though, the most interesting argument that the hospital made, from a legal perspective, was that the neurosurgery expert’s initial report stated that the positioning and migration of the retractor was solely the responsibility of the surgeon. On that basis, the hospital argued that the surgical technician’s actions weren’t a substantial factor in causing the injuries.

The appellate court noted that a preliminary expert report isn’t “required to rule out every possible cause of the injury, harm, or damages claimed.” Baylor Med Ctr. at Waxahachie v. Wallace, 278 S.W.3d 522, 562 (Tex. App.—Dallas 2009, no pet.). If such a requirement existed, the court explained, it would create an impossible standard: The plaintiff would have to rule out the surgeon as a cause of the migration to implicate the surgical tech, and vice versa.

Similarly, the Corpus Christi-Edinburg Court of Appeals rejected the hospital’s argument that the plaintiffs’ expert reports were conditioned on base assumptions. The court noted that the only assumption is as to which individual breached the standard of care, which was a question properly left to the jury at trial.

This is a helpful opinion to plaintiffs. It summarizes the state of existing Texas law on what’s required in preliminary medical malpractice expert reports in cases where it’s unclear which of multiple defendants is responsible for an injury. In these cases, courts should allow the litigation and discovery to proceed so additional evidence answers the question.

If you’ve been seriously injured in Texas because of poor operating room, hospital, or medical care, 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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