Med-mal case continues after appeals court agrees not to dismiss

David Yates Apr. 15, 2008, 4:56pm

Dan Packard

Last April, The Record reported on a medical malpractice lawsuit involving a Newton County woman who claimed a lengthy delay in her medical treatment at Mainland Medical Center resulted in a ruptured appendix.

Shortly after the suit was filed, Mainland Medical submitted a motion to dismiss the claim, which was denied by 136th District Judge Milton Shuffield. The hospital appealed the ruling and on April 10 justices on the Texas Ninth District Court of Appeals affirmed the trial court's decision.

Plaintiffs Cathy and Tommy Wheeler originally filed their medical malpractice suit on April 9, 2007, against Renaissance Hospital, Dr. Restituto Baluyot and Mainland Medical Center in Jefferson County District Court, claiming inadequate medical treatment and diagnosis caused Cathy Wheeler's appendix to burst.

Mainland Medical appealed Judge Shuffield's ruling on Dec. 20, 2007, arguing the trial court abused its discretion in denying the motion to dismiss because the expert reports the Wheelers served on Mainland did not comply with the statutory requirements of section 74.351 of the Texas Civil Practice and Remedies Code.

According to the plaintiff's petition, Cathy Wheeler visited a Bridge City doctor on Feb. 14, 2005, complaining of abdominal pain in the right lower quadrant. The Bridge City doctor sent Wheeler to Renaissance Hospital in Groves for an abdominal ultrasound.

Dr. Restituto Baluyot was the radiologist who read the ultrasound films and "negligently reported that plaintiff Cathy Wheeler has a 'negative appendictial ultrasound'" the petition states.

Two days later, Wheeler went to the emergency room at Mainland Medical Center in Texas City, where after waiting, was told she would not see a doctor that day and went home. Still in pain, she went back to Mainland Medical, given pain medication and told, again, to go home.

Later that day she returned to the Mainland emergency room in pain, "where she waited and suffered an astonishing 10 1/2 hours without seeing a physician." She went home again and returned by ambulance on Feb. 20.

Wheeler waited an additional 12 hours and was eventually diagnosed with a ruptured appendix and taken to surgery. "Thus, after six days of neglect, Cathy Wheeler finally had the surgery she should have had much earlier," the petition states.

While the surgery did save Wheeler's life, "she suffered greatly as a result of a delayed diagnosis. The infection was severe and caused her to stay in the hospital for months," the suit reads.

Wheeler's husband, Tommy, "had to return from his lucrative job in Kuwait to care for his wife. Thus, the family went from two incomes to zero income."

Ultimately, the Wheelers claimed that one of Mainland's nurses improperly triaged Cathy and that the unreasonable delay in her medical treatment at Mainland caused her to suffer a ruptured appendix before surgery.

As required by Texas Civil Law, the Wheelers served the health care providers with the expert medical reports. Dr.Robert Tantleff's report addressed the allegations against Renaissance and Baluyot, and Dr. Harold Gaskill's expert report discussed Mainland's care and treatment of Cathy.

According to court documents, Mainland filed a motion dismiss, arguing that Dr. Gaskill's report did not comply with the statute and that Dr. Tantleff's report did not mention Mainland. After a hearing, the trial court granted the Wheelers a 30 day extension to take care of any deficiencies, and the couple served Mainland with a supplemental report by Dr. Gaskill, an opinion authored by Justice Charles Kreger stated.

In his supplemental report, Dr. Gaskill addressed Cathy Wheeler's encounter with the Mainland emergency department.

Gaskill stated that in his professional opinion, "it was below the standard of care for Ms. Wheeler to be triaged as 'Non-urgent' on Feb. 17, 2005."

"It is also my professional opinion, to a reasonable degree of medical certainty, that had Ms. Wheeler had laboratory studies drawn and been evaluated by a physician … that her appendicitis would have been diagnosed and treated at least four days earlier thereby reducing, or even avoiding altogether, her intraperitoneal sepsis and associated adverse outcomes," Dr. Gaskill wrote.

On appeal, Mainland presented three issues: whether the Wheelers served expert reports on Mainland that complied with section 74.351's requirements; whether the Wheelers showed that Dr. Gaskill was qualified to submit an expert report in this case under section 74.402; and whether Dr. Gaskill's opinions on causation were conclusory, and therefore, not a good faith effort under section 74.351.

"We conclude that the trial court did not abuse its discretion in ruling that Dr. Gaskill's reports meet the requirements of expert reports under Texas law. See id. § 74.351. As a result, the trial court did not abuse its discretion in denying Mainland's motion to dismiss. We overrule appellant's issues on appeal and affirm the trial court's order," Justice Kreger wrote.

The Wheelers are seeking punitive damages, plus damages for Cathy's physical pain and suffering, mental pain and anguish, medical expenses, physical impairment, mental impairment, lost earning capacity, physical disfigurement and loss of household services.

Tommy Wheeler is also seeking damages for medical expenses, loss of household services and loss of consortium.

Daniel Packard of Packard, Packard & LaPray of Beaumont is representing the plaintiffs.

Mainland is represented in part by attorney Richard A. Sheehy.

Appeals Case No. 09-07-00634-CV
Trial case No. D179-083

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