Appeals court reopens dental malpractice suit, allows expert testimony regarding girl's brain damage

Steve Korris Nov. 1, 2007, 4:36am

Appellate judges in Beaumont have reopened a dental malpractice suit that Judge Cara Wood of the 284th District Court in Montgomery County dismissed.

Wood had declared a report from anesthesiologist Malcolm Orr insufficient to sustain the claim of Bill and Lana Comstock over brain injuries their daughter Megan suffered.

The Ninth District Court of Appeals ruled Oct. 25 that Wood should have admitted Orr's report.

Justice Hollis Horton wrote, "We find that Dr. Orr's expert report provided a fair summary to reflect the bases of his opinions."

Horton wrote, "�the report represents an objective good faith effort to comply with the statutory requirements of a health care liability expert report."

Bill and Lana Comstock sued oral surgeon James Clark and his employer, Northwest Oral and Maxillofacial Surgery, last year.

They claimed Megan suffered permanent brain damage because of an overdose of medication during extraction of her wisdom teeth.

They submitted an expert report from Orr, as state law requires.

In Texas, a medical malpractice plaintiff must submit an expert's fair summary of the defendant's failure to meet the applicable standards of care and the causal relationship between that failure and a patient's injuries.

Clark and the clinic moved to strike the report as insufficient. Wood granted the motion but gave the Comstocks 30 days to submit a better report.

Orr rewrote the report but Clark and the clinic still objected.

Clark and the clinic moved to dismiss, claiming Orr was not qualified to render an opinion because he was not a neurosurgeon or a specialist in brain disorders.

Wood granted the motion to dismiss.

The Comstocks appealed, successfully.

Horton's opinion noted that, "Not every physician automatically qualifies as an expert in every area of medicine."

He wrote, "However, a physician need not be a practitioner in the same specialty as the defendant to be a qualified expert in a particular case."

He wrote, "Under the Rules of Evidence, the test is whether the offering party has established that the expert has knowledge, skill, experience, training or education regarding the specific issue before the court."

He wrote that Orr is a professor of anesthesiology at the University of Texas Health Science Center in San Antonio.

He wrote that since 1978 Orr has provided general anesthesia at the university dental school and at Audie Murphy Veterans Hospital.

He wrote, "Dr. Orr's report focuses on Megan's overdose of sedation medication, her monitoring after the procedure, her untimely discharge, and her resulting cerebral hypoxia."

He wrote, "Because Dr. Orr's qualifications reflect that he is educated, trained, and experienced in anesthesiology, he is qualified to express the general opinion that a significant deprivation of oxygen causes brain injury."

He wrote, "Dr. Orr's report is adequate to demonstrate that his qualifications were sufficient to allow him to associate the deprivation of oxygen to Megan's brain as a probable cause of her symptoms that he attributed to a brain injury."

He wrote that according to Orr, Megan received 150 percent of the maximum recommended dose of sedation medication.

He wrote that Orr explained how the defendants should have administered reversal agents and how they failed to properly monitor Megan.

He wrote that according to Orr, Megan did not meet criteria for discharge.

Chief Justice Steve McKeithen and Justice David Gaultney joined the opinion.

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