Appeals court: Doctor need not be in same field to give expert report

Steve Korris Jan. 22, 2009, 2:42am

Chief Justice Steve McKeithen

Ninth District appeals judges won't require an expert report from a gynecologist in a malpractice suit against a gynecologist.

"A physician need not be a practitioner in the same specialty as a defendant to qualify as an expert," Chief Justice Steve McKeithen wrote in a Jan. 15 opinion.

McKeithen, Justice Charles Kreger and Justice Hollis Horton rejected an appeal from Dr. Ramin Moheb of Orange County Women's Center, seeking to overturn Orange County District Judge Dennis Powell.

Powell denied Moheb's motion to dismiss a suit that Andy Fred Harvey filed over the death of his wife, Alberta Lavon Harvey.

Harvey filed an expert report as state law requires in a medical malpractice suit, but Moheb, a gynecologist, argued that it didn't satisfy the requirements in the law.

Moheb objected to the qualifications of expert Dr. Carl Berkowitz – an infectious disease specialist – the conclusions of his report, and the introduction of a supplemental report.

The Ninth District waved off the objections. "Berkowitz's report explained the factual basis for his statements and linked his conclusion to the facts," McKeithen wrote.

In 2005, Alberta Harvey sought treatment at the Women's Center for pain and swelling.

Moheb took a culture, cauterized the area and prescribed Augmentin, an antibiotic.

The next day, Andy Harvey told Moheb the condition had worsened. On Moheb's advice, Andy took Alberta to Memorial Hermann Baptist Hospital in Orange.

Three days there didn't improve her condition, and doctors sent her to Continue Care Hospital of Southeast Texas.

Doctors there received word that the culture Moheb had taken showed methicillin resistant staphylococcus aureus, or MRSA.

After two weeks without improvement, doctors sent her back to Memorial Hermann Baptist for exploratory surgery.

Eleven days after surgery, she died.

Her husband sued Moheb, the Women's Center, and other defendants.

He alleged that Moheb diagnosed Alberta improperly, failed to follow up on the culture in timely fashion, and failing to control the infection.

Within the 120 days that medical malpractice law allows, he filed an expert report that identified Berkowitz as a specialist in infectious diseases.

Moheb objected to the report as inadequate. Harvey, still within the 120 day limit, filed a supplemental report that incorporated the original report.

In the report Berkowitz stated that Moheb should have suspected MRSA.

"In this setting the standard of care was to suspect this organism and treat the patient with an appropriate antibiotic," he wrote.
Augmentin was not appropriate, he wrote.

Moheb should have immediately reported the culture results to the hospital, he wrote.

"Had she been admitted to the hospital and started on intravenous antibiotics, the infection would never have progressed as far as it did," he wrote.

Moheb moved to dismiss, Powell denied it, and the Ninth District affirmed Powell.

McKeithen wrote that Texas law focuses not on a defendant doctor's area of expertise but on the condition involved in the claim.

He wrote, "Berkowitz asserts that the standard of care for treating labial MRSA lesions does not differ substantively between a gynecologist and a specialist in infectious diseases."

He wrote that Powell acted within his discretion in concluding that the report demonstrated Berkowitz's knowledge of accepted standards for diagnosis and treatment.

"The report discussed standard of care, breach and causation with sufficient specificity to inform appellants of the conduct appellees have called into question and to provide a basis for the trial court to conclude that appellees' claims have merit," he wrote.

He wrote that a recent Supreme Court decision allows a trial court to consider a supplemental report after a defendant has challenged the sufficiency of a report.

Christopher Smith represented Harvey. Darla Smith and Marion Kruse Jr. represented Moheb.

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