Jury finds Bush not guilty in criminal trial, but civil suit regarding bullet removal continues

Marilyn Tennissen Aug. 27, 2008, 11:15am

Prosecutors would have liked to have the bullet that is lodged in Joshua Bush's forehead to convict the Groves teen on felony charges.

But Bush won't let the bullet be removed and has an ongoing civil suit against the doctor that tried to take it out. Without the bullet and some critical witness testimony, a Jefferson County jury declared Bush not guilty in a criminal trial last week.

Port Arthur police believe the bullet links Bush, 19, to the robbery of the Olive Used Cars in July 2006. Authorities allege Bush took part in the robbery and then got into a gunfight with Allen Olive, owner of the car lot.

Olive told police one of the burglars shot at him and missed, and Olive then returned fire. It is a bullet from Olive's gun that authorities believe is lodged in Bush's forehead, about 3 inches above his left eye.

A Beaumont doctor attempted to remove the bullet in 2006, but Bush claims he never consented to the procedure. In a civil lawsuit filed July 18, he accused the physician of medical battery in a civil lawsuit filed July 18 in Jefferson County District Court.

On Oct. 29, 2006, Bush was an inmate in the Jefferson County Jail on unrelated charges when he was taken by the Port Arthur Police Department to Christus Hospital St. Elizabeth in Beaumont. PAPD had a search warrant authorizing Dr. David Parkus to remove the bullet.

"Mr. Bush did not consent to undergo this surgical procedure," the original complaint states. "In fact, Mr. Bush expressly told the physician, defendant Dr. David Parkus, to refrain from touching him and verbally prohibited Dr. Parkus from performing the surgery. On Oct. 29, 2006, and without Mr. Bush's consent, Dr. Parkus performed an invasive surgical procedure on Mr. Bush in an attempt to remove the bullet."

The suit also charges Christus with vicarious liability for allowing Dr. Parkus to perform the procedure.

In its answer to the complaint filed Aug. 12, the hospital states that Parkus is not an employee of Christus Hospital St. Elizabeth, but "only an individual contractor and therefore Christus is not responsible for vicarious liability."

"The claims of which plaintiff complains were in no way caused by, or brought on by, any alleged act committed by the defendant," the original answer states. "Rather, such claims are due solely, if at all, to the acts of third parties for whose conduct defendant is not liable or responsible …"

Representing Christus, attorney Erin Lunceford of Houston writes that the occurrence in question "was not reasonably foreseeable" and that "any injuries suffered by the plaintiff were the result of the comparative negligence of the plaintiff."

Christus also contends that any claims awarded to Bush are limited under the Texas Civil Practice and Remedies Code.

The "invasive surgical procedure on plaintiff's person was intentional, reckless, extreme and outrageous," Bush alleges, and caused "severe emotional distress, which cannot be remedied by any other cause of action."

Dr. Parkus, a trauma surgeon, attempted the procedure in the emergency room and discovered that bone had begun to grow around the bullet. He told authorities removal would require an operating room and additional equipment.

A second search warrant sent Bush to the University of Texas Medical Branch in Galveston, but the surgery was not performed. It was reported that the UTMB surgeon refused to do the operation because of Bush's objections.

Authorities eventually dropped their efforts to have the bullet removed, pursuing the case against Bush without it.

In a criminal trial that concluded Aug. 22, Bush was found not guilty of aggravated assault with a deadly weapon and retaliating against a potential witness.

During the trial, Jefferson County prosecutors read entries from Bush's medical records which quoted him as stating that the bullet in his head was fired through his bedroom window and struck him while he was sleeping.

A Port Arthur detective that accompanied Bush to the Christus and UTMB testified that Bush asked him what kind of gun he was shot with, and whether police found any blood at the scene, because he "bled a lot."

Prosecutors used X-rays of the bullet to try to show jurors that it was the same caliber as used in Olive's gun, but a ballistics expert for the defense testified that the best way to identify the bullet is to remove it, and not through X-rays.

Bush is represented by Danny Scott Jr. in his civil suit, and is seeking actual damages, exemplary damages, interest, court costs and other relief.

Bush still faces other criminal charges associated with the burglary at Olive's Used Cars, as well as a felony deadly conduct charge.

Civil Case No. E182-086

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