Malpractice suit against Spiegel continues after appeal denied

David Yates Aug. 20, 2008, 11:36am

Dr. Felix Spiegel

Known throughout the Golden Triangle for his lap band weight-loss surgery commercials, Dr. Felix Spiegel recently had his appeal denied, allowing a medical-malpractice claim against him to continue.

On Aug. 14 justices on Texas' Ninth Court of Appeals affirmed 58th District Judge Bob Wortham's ruling denying Dr. Spiegel's motion to dismiss the health care liability claims of Melissa Strother.

In August 2007, the Southeast Texas Record reported on the lawsuit filed by Warren and Melissa Strother -- a Louisiana couple who allege Dr. Spiegel ignored their child after obesity surgery.

In their suit, the couple claimed they brought their obese daughter in for follow-up treatment on numerous occasions after her "lap band" surgery, but the doctor never took the time to personally evaluate the young girl.

The Strothers allege their daughter developed pancreatitis due "to the lack of appropriate care by Dr. Felix Spiegel."

After his motion to dismiss was denied, Dr. Spiegel appealed; arguing the trial court erroneously denied his motion because plaintiffs did not timely serve him or his attorney with a copy of the expert report within 120 days as required by the Texas Civil Code, court documents show.

"Felix Spiegel, M.D., appeals from the trial court's interlocutory order denying his motion to dismiss the health care liability claims of Melissa Strother," the opinion authored by Justice David Gaultney states.

"The order states an expert report and curriculum vitae were served on the defendant within 120 days of the filing of the petition. Because the service requirement of the statute was met, we affirm the trial court's order."

The Texas Civil Remedies Code requires the claimant in a health care liability claim to serve on each party, or the party's attorney, an expert report and curriculum vitae not later than the 120th day after the date of the filing of the original petition.

The statute requires a defendant to "serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived," the opinion states.

"The plaintiffs first delivered the report to Spiegel's office and then separately to his attorney during discovery. After suit was filed, but apparently prior to issuance of citation, a private process server delivered the expert report and curriculum vitae to Spiegel's office in Port Neches," the opinion states.

"The process server handed the documents to 'the person behind the window' at the doctor's office; however, the process server's 'affidavit of service' stated he served 'Dr. Felix Spiegel.' Plaintiffs' attorney filed a certificate of service that stated the doctor had been served with the report and curriculum vitae by a private process server."

Since Dr. Spiegel was out of town that day, he argued the delivery is not service because the report was not delivered directly to him in person, and the documents were not delivered to an agent authorized by him to accept service, court documents say.

"The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law," the opinion states.

"To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction."


According to the plaintiffs' original petition, the minor child was a patient under the care of Dr. Spiegel. On June 24, 2005, the girl was admitted to the Physicians Surgery of Houston, where Dr. Spiegel performed a Laparoscopic Gastric Banding, or better known as the lap band procedure.

After the procedure, the Strothers' daughter began complaining of an inability to keep certain foods down. The couple brought their daughter in for examination, and the child's lap band was adjusted and the family was instructed to return in October for another follow-up evaluation.

"(The plaintiffs' daughter) returned to see Dr. Spiegel…with continued complaints of abdominal pain and choking sensation, and was seen by Dr. Spiegel's staff," the suit said. "Again, the lap band was adjusted and she was instructed to return if her symptoms persisted."

The girl returned "on numerous occasions" to Dr. Spiegel's Jefferson County facility, complaining of periodic bouts of severe abdominal pain and the inability to keep food down, the suit said.

"On each occasion, (the girl) was seen by Dr. Spiegel's staff," the suit said. "On each occasion, the staff simply documented (her) symptoms and adjusted the lap band. At no time was (she) seen by Dr. Spiegel for these continued complaints related to the lap band procedure.

"The (girl's) condition continued to deteriorate to the point she was seen in the emergency room at Lake Charles Memorial Hospital on July 25, 2006. The following day (she) was rushed to the hospital and an esophagogastroduodenoscopy was performed revealing the presence of a concentric constrictor around the esophagus and the presence of necrotic tissue in the field.

"The gastric banding device had migrated, creating a life threatening condition. On July 27, 2006, (the girl) was transferred to Lake Charles Women's and Children's Hospital, where, she underwent emergency surgery for prolapse of the stomach."

The plaintiffs contend that if Dr. Spiegel took the time to properly evaluate their daughter, the young girl would have never developed pancreatitis, an inflammation of the pancreas.

The plaintiffs are suing for past and future mental anguish, physical impairment and disfigurement, pain and medical expenses, loss of earning capacity, plus recovery of pre and post-judgment interest.

In addition, the plaintiffs are also suing for loss of support, companionship and consortium, and are also seeking exemplary damages.

The plaintiffs are represented by attorney Scott Browne of the Browne & Browne law firm.

Dr. Spiegel is represented in part by attorney William J. Sharp.

According to a weight-loss surgery Web site, Dr. Spiegel opened a private practice, the Texas Laparoscopy Center in Southeast Texas and Houston in 2001. He is certified by the American Board of Surgery and fellow of the American College of Surgery.

Dr. Spiegel received his medical degree from New York University School of Medicine and completed his residency training at Beth Israel Medical Center where he began to perform laparoscopic surgery.

The site states that Spiegel was involved with the first laparoscopic cholecystectomy performed in New York in 1989.

"He was among the first surgeons to master this procedure," it states. "Now Dr. Spiegel has mastered the LapBand Surgery for obesity. He has had extensive experience in performing this obesity surgery with more than 3,000 successful patients. Dr. Spiegel continues to develop new, minimally invasive surgical techniques."

Appeals case No. 09-08-00144-CV
Trial case No. A179-811

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