The Houston First Court of Appeals recently issued an opinion in a medical malpractice case where the defendant challenged the sufficiency of a plaintiff’s preliminary expert report.
Unique to medical malpractice cases in Texas, plaintiffs have to produce a report early in litigation detailing the applicable standard of care, how it was violated, and how such conduct caused harm to the patient. This is required by Texas Civil Practice and Remedies Code Section 74.351. If the defendant contends that a Chapter 74 report is insufficient, it may file objections within 20 days of receiving the report.
That’s what happened in the case styled George T. Kuhn, M.D., George T. Kuhn, M.D., P.A. d/b/a Women’s Healthcare Associates, Paul James, M.D., Metropolitan Houston Surgery Associates, PLLC, Adam Morales, M.D., West Houston Radiology Associates, L.L.P., and Singleton Associates, P.A. d/b/a Radiology Partners Golf Coast v. Angie Sam, No. 01-20-00260-CV, In the First Court of Appeals. You can read the appellate Court opinion here.
The medical facts of this case began with a woman being admitted to Houston’s St. Joseph Hospital because of pelvic pain, uterine fibroids, and right ovarian cyst. She was taken to an exploratory surgery that included lysis of adhesions, removal of her right fallopian tubes and ovary, and a hysterectomy. During the surgery, the patient had extensive blood loss that required a blood transfusion.
After surgery, the woman had persistent pain, fever, nausea, and vomiting. Six days after surgery, a radiologist interpreted the CT scan as showing air, fluid, and a contrast leak in the peritoneal cavity. This led to the diagnosis of bowel perforation.
Many people are surprised to find that the accidental perforation or damage to the bowel during a laparoscopic abdominal surgery is not generally considered negligence. Instead, the focus is on whether the surgical and medical team timely diagnosed and treated the perforated bowel.
In this patient’s case, it wasn’t until 10 days after her initial surgery (when the bowel perforation occurred) that she was taken back to the operating room to repair it. Of course, during that 10-day interval, bowel contents were leaking internally, wreaking havoc and causing infection.
In the medical malpractice lawsuit, the patient alleged that the defendant obstetrician/gynecologist and other physicians violated the standard of care by failing to recognize her bowel perforation until six days after her initial surgery. Plus, the patient was critical of the fact that her OB/GYN didn’t bother to order a surgical consult to get her back to the operating room immediately for surgical repair, even after finally diagnosing the bowel injury.
In order to comply with Texas law, the plaintiff’s OB/GYN expert witness provided a report detailing the OB/GYN’s obligation to provide post-operative care that includes diagnosing and treating any complications arising from the surgical procedure. The expert explained that bowel perforation is a well-known complication of a hysterectomy surgery, occurring in around one out of every 700 cases. The rate is even higher, though, in cases such as this one, where adhesions are present.
That’s why the expert shared his written opinion that the defendant gynecologist was required to suspect a bowel perforation by the third day after surgery, when the patient had pain, fever, nausea, and an abdominal CT had abnormal findings. The expert also backed up the plaintiff’s criticism that the OB/GYN should’ve immediately ordered a consult with a general surgeon to repair the bowel injury. That, too, was delayed in this patient’s care, subjecting her to additional injuries.
The defendant objected to the sufficiency of the plaintiff OB/GYN expert’s report on various grounds, including that the expert was unqualified to render certain opinions (including, for example, standard of care opinions as to the defendant general surgeon), his report did not identify the applicable standard of care, and his explanation of how the alleged negligence caused harm to the patient was lacking.
The trial court denied all of the objections, leaving the defendants to appeal the decision to the Houston Court of Appeals. The appellate court’s opinion found that the trial court did not abuse its discretion and, thus, affirmed the trial court’s order.
If you’ve been seriously injured because of mismanagement of a bowel perforation or injury in Texas, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.
