Appeals court: Expert's report not based on medical facts

Steve Korris Oct. 15, 2008, 5:00pm

Chief Justice Steve McKeithen

BEAUMONT – Lori Cunningham Pinto, who sued two doctors for allegedly sewing her ureter shut, can't sue a third doctor for failing a few days later to break the stitches, the Ninth District appeals court in Beaumont decided on Oct. 9.

Chief Justice Steve McKeithen and Justice Charles Kreger rejected Pinto's expert report against the third surgeon, Dr. Matthew Hogan.

The report "fails to explain the causal relationship between Hogan's treatment of Pinto and the alleged injuries, as opposed to the treatment provided by Pinto's other health care providers," McKeithen wrote.

He and Kreger reversed Montgomery County District Judge Frederick Edwards, who had denied Hogan's motion to dismiss.

Justice David Gaultney dissented.

"The report adequately informs the defendant of the specific conduct that is thought to have caused harm," he wrote.

Pinto can continue pursuing claims against Drs. Jerome Young and Marra Francis, who performed her hysterectomy at Memorial Hermann The Woodlands Hospital.

She returned six days after surgery with extreme pain, nausea and vomiting.

According to Pinto, Dr. Hogan inserted a wire from her bladder to her kidney and inserted a drainage tube into her kidney.

That didn't help, according to Pinto. She claims she obtained relief at last when surgeons at Methodist Hospital discovered the stitches and broke them.

She sued Drs. Young, Francis and Hogan. Pinto provided an expert report within 120 days, as Texas law requires in medical malpractice suits.

Dr. Hogan objected to the report, arguing that author Dr. Rodney Appell didn't demonstrate qualifications to render opinions on Hogan's standard of care.

Judge Edwards sustained the objection.

Appell amended his report to state that Dr. Hogan should have offered Pinto an open or laparoscopic repair of the ureter.

"The patient was not properly informed of the options," he wrote.

Renal function was compromised, Appell wrote, with ultimate risk of losing a kidney.

"Simply waiting for the suture to dissolve over an extended period of time created an undue risk for the health and safety of the patient," he wrote.

Dr. Hogan could have determined the cause of the obstruction by opening the area to visual examination, Appell wrote.

"This option was not given to patient thus breaching the standard of care," he wrote.

Instead of objecting again, Dr. Hogan moved to dismiss. He argued that Appell based the report on assumptions and inferences that medical facts did not support.

Judge Edwards denied the motion, and Dr. Hogan appealed.

Justices McKeithen and Kreger sided with Dr. Hogan, finding that the report did not meet the requirements of the statute.

They held that it provided no basis for determining if Pinto's claims had merit.

Justice Gaultney disagreed. The report indicated that repair of the ureter would have been the appropriate treatment, he wrote.

"The report expresses the opinion that he breached the standard of care by not informing the patient of the option of a procedure 'that would immediately determine the cause of the obstruction such as simply opening the area to visual examination,'" Gaultney wrote.

"No one questions the qualifications of the expert to express these opinions," he wrote.

Gary Sommer represented Dr. Hogan. Christopher Sebesta represented Pinto.

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