Hospital dismissed from suit due to inadequate report from plaintiffs' expert

David Yates Jul. 28, 2009, 4:22am

Without an adequate expert report to back up the plaintiffs' claims, Christus Hospital St. Elizabeth has been dismissed from a suit that blamed it for the death of a stabbing victim.

In February, the Southeast Texas Record reported on a suit filed by Deliiala Lemon, who sued Christus and one of its doctors on the behalf of Tyrone Lemon.

Court papers show Lemon was taken to Christus Hospital St. Elizabeth in Beaummont on March 6, 2007, for a stab wound in his back. He was treated by defendant Dr. Leroy Foster Jr. Lemon died later that day.

Two years later, his family filed a suit against the doctor and hospital, alleging their negligence was the cause of Lemon's death.

Texas Civil Law requires that a claimant file a medical professional's expert report to substantiate the claims in a medical malpractice lawsuit.

A few months after the suit was filed, Dr. Foster and Christus filed a motion to dismiss on the grounds that Lemon's family and their attorney failed to timely file an adequate expert's report.

Court records show that the plaintiffs had hired the services of a medical doctor but failed to prove that he had practiced medicine in the area, which would allow him to testify on the applicable standard of care for either defendant.

In response to the defendants' motion, the Lemons asked for a 30-day extension in order to sure up their expert's report.

On July 27, Judge Milton Shuffield, 136th Judicial District, granted the plaintiffs' request for a good faith extension, but also dismissed Christus from the suit. Dr. Foster's separate motion for dismissal was declined.

"Having reviewed the report, the court finds the plaintiffs' expert report is completely devoid of any opinion as to a standard of care applicable to (Christus) …," the judge's ruling states. "Accordingly, Christus's motion … is granted."

Shuffield wrote that there was adequate opinion concerning Dr. Foster and denied his motion. "While the report is, admittedly, brief, it does set forth the applicable standard of care (concerning Dr. Foster)."

However, Dr. Foster is also challenging the plaintiff's expert's qualifications and is seeking dismal on those grounds.

After the plaintiffs resubmit their report, the judge will make a ruling on Foster's motion, court papers say.

The plaintiffs are seeking exemplary damages, plus pre-judgment interest at the maximum rate, post-judgment interest at the legal rate, costs and other relief to which they are entitled.

They are represented by Joseph O. Onwuteaka of the Law Office of Joseph Onwuteaka in Houston.

Christus was represented in part by attorney Krystal Scott.

Case No. D183-317

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