How to prove a DVT/pulmonary embolism medical malpractice case in TexasThe story of Cody: A medical malpractice case of a DVT patient who died of pulmonary embolism.
Pulmonary embolism is a dangerous condition that starts with the formation of a blood clot, usually in the deep veins of the legs (DVT and pulmonary embolism diagnosis, treatment, and medical malpractice). When a clot breaks loose, travels, and blocks an artery supplying the lung, it is called a pulmonary embolism. When a pulmonary embolism is not diagnosed and treated properly, the mortality rate is around 30 percent. When promptly treated, the death rate is less than 10 percent.
There are several risk factors for the development of deep vein thrombosis, or DVT, including age over 60, pregnancy, being overweight, taking birth control medication, and immobility. But pulmonary embolism can happen to anyone, including how a "man in 30s sent home from ER by nurse practitioner, died of pulmonary embolism."
Here at the Painter Law Firm, we have handled numerous cases where patients developed DVTs after being immobile for a long period of time during and following surgery. Lack of movement means that the calf muscles do not contract, which allows blood to pool in the deep veins of the legs.
This brings to mind a wrongful death medical malpractice case that we handled for a Dallas-area family. A woman in her 40s went to a plastic surgeon for a "mommy makeover." Let's call her Donna. The plastic surgeon recommended doing all the procedures at once, which meant Donna was under general anesthesia and in an operating room for over 11 hours. Donna was discharged home the same day with no prescription for anticoagulation medication that would break up blood clots.
Donna developed a DVT and died the next day from a pulmonary embolism, leaving behind a husband and teenage son.
How to prove a DVT malpractice case in Texas
Under Texas law, victims of medical malpractice must meet special requirements under the tort reform laws. One of the major hurdles is having a written expert report from a physician early in the litigation before there is an opportunity to investigate the case fully. When multiple parties share responsibility for the medical practice, it requires careful attention.
The 14th Court of Appeals in Houston, Texas, recently entered an opinion in a pulmonary embolism medical malpractice case where the plaintiff, Cody Bernard, sued CHI St. Luke's Health—The Woodlands Hospital and two physicians on the hospital's medical staff. You can read the opinion here.
Cody went to St. Luke's The Woodlands Hospital because of problems urinating (dysuria) and abdominal pain. He was admitted and treated for a week and a half and discharged home. Two days later, he died from cardiac arrest. Cody's family filed a medical malpractice wrongful death lawsuit. To comply with tort reform requirements, the plaintiffs produced an expert report from Mark Murray, MD, a board-certified internal medicine physician who practices as a hospitalist. Dr. Murray's report detailed his opinion that the standard of care required:
- The hospital to have a pulmonary embolism protocol to help physicians and nurses identify patients at risk for DVTs and pulmonary embolism.
- Communication among physicians and nurses about clinical findings, risk factors, and treatment.
- Once a patient is identified as having a high risk for pulmonary embolism, proper anticoagulation.
- Mechanical methods, such as compression stockings or a serial compression device (SCD) that imitate walking. By keeping blood constantly flowing, clots won't develop.
- Chemical methods, including administration of anticoagulation medications to reduce the risk of blood clots.
- Patient education.
Dr. Murray contended that the same standard of care applied to the hospital (and nursing staff) and all the named physicians. The defendants objected to the sufficiency of Dr. Murray's expert report, alleging, among other reasons, that there were different standards of care.
Why an appellate court overruled a Harris County trial court's decision to dismiss the case
The Harris County trial court agreed with the defendant and dismissed the case. Even though the law allows trial courts to liberally grant a single 30-day period for plaintiffs to cure, or fix, deficient preliminary expert reports, the trial court declined the plaintiffs’ request. The trial court also ordered the plaintiffs to pay thousands of dollars in attorneys' fees to the defendants.
The appellate court found that Dr. Murray’s report met the legal requirement of providing a fair summary of the criticisms. The opinion also found, though, that the trial court could have reasonably concluded that the single expert report failed to adequately tie conclusions to individual healthcare providers.
The 14th Court of Appeals reversed the trial court’s decision and ordered the trial court to give the plaintiffs 30 days to address any deficiencies in the expert report.
Why a case with multiple experts is more expensive, but worth it
This interesting case illustrates the challenge of suing multiple defendants. There is, of course, an added cost of hiring multiple expert witnesses to prepare reports. On the other hand, if the standard of care is identical, one expert can meet the requirement. Here, the courts concluded that the expert report was lacking because it "fails to explain why these different healthcare providers owed the same duties and breached them in the same manner."
Now that the case is remanded to the trial court, the plaintiffs could choose to have Dr. Murray add additional details to explain the deficiencies that the appellate court identified. It’s also possible, though, to address the deficiencies by having one or more new experts prepare reports.
Based on my experience, when I file a lawsuit against a hospital and physicians, I prefer to have, at a minimum, expert reports from a physician and a nurse. I’ve found that this eliminates the time and expense spent on defense objections to expert report sufficiency. I wrote about the reasons behind this because of how a tort reform discovery stay can delay Texas medical malpractice cases.
If you’ve been seriously injured in Texas because of poor care involving pulmonary embolism or deep vein thrombosis (DVT), contact a top-rated and experienced Texas medical malpractice attorney for a free strategy session 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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