Dej� vu: Judge Floyd's failure to exclude medical expert questioned before appeals court, again

David Yates Aug. 18, 2009, 7:55am

For the second time on the same case, appellate justices have been tasked to decide if Judge Donald Floyd abused his discretion when he denied a defense objection to the qualifications of a medical expert.

In June 2007, the Southeast Texas Record reported on a wrongful death suit filed by Preston Broussard, who claimed his 70-year-old wife Dorothy died because hospital staff neglected to realize her breathing tube had fallen out -- a discovery made instead by the couple's 10-year-old son.

Broussard's suit faulted Christus Hospital St. Mary, Dubuis Hospital of Port Arthur and Dr. Sreedhar Polavarapu for negligently failing to strap down his wife, a precaution which the plaintiff claimed would have prevented Dorothy from knocking out her breathing tube.

In order to substantiate his claim, Broussard and his attorneys submitted the expert opinion of Dr. Jon D. Peters, a Virginia neurologist, who wrote that all the defendants breached the applicable standard of care by failing to "adequately restrain and monitor Mrs. Broussard."

Christus and Dubuis jointly objected to Dr. Peters' "vague and conclusory" expert opinion, "because it was not written by an expert qualified to testify regarding the standards of care for nurses," the hospitals' motion to dismiss stated.

Nonetheless, on Jan. 17, 2008, Judge Floyd, 172nd District, found that the defense motions lacked merit, and denied the motion to dismiss and the objection to Dr. Peters' expert testimony � leading the defendants to appeal his decision.

The Texas Ninth District Court of Appeals, however, did not agree with Floyd, issuing an opinion on Sept. 11, 2008, ruling that the report was "deficient."

"We hold that the expert report is deficient," the appeals opinion states. "Accordingly, we reverse the trial court's orders and remand the case to the trial court for further proceedings."

In response to the higher court's ruling, Judge Floyd allowed the plaintiffs to amend their expert report. And, again, the defendants filed a motion to dismiss, asserting the amended report was still vague and deficient.

And, again, Floyd denied their motion, leading the defendants to appeal for a second time.

"The trial court abused its discretion in denying (defendants') second motion to dismiss," the defendants' appeal states, which was filed May 2.

On appeal, the hospitals and doctor argue that the trial court abused its discretion in denying the motion to dismiss because the plaintiff's "amended expert report does not meet the statutory requirements of Texas Civil Practice & Remedy Code section 74.351."

Oral arguments have been slated for Sept. 24


According the plaintiffs' original petition, on April 9, 2005, the breathing tube connected to Dorothy Broussard was inadvertently removed.

"The hospital staff was not aware of the event because Mrs. Broussard's 'finger light' (heart monitor) had been removed earlier that day," the petition states. "Due to the lack of oxygen over an extended period of time (because the 'finger light' was removed, no one at the hospital was aware of the patient's plight), Mrs. Broussard fell into a coma, and passed away on July 12, 2005."

The plaintiffs claim that "defendants' failure to safely monitor and restrain Dorothy Broussard led to the deprivation of oxygen that caused Mrs. Broussard's untimely demise."

Broussard's medical saga began on Feb. 4, 2005, when she fell at her home in Sabine County. She was taken by ambulance to Hemphill Hospital and then transferred to Lufkin Memorial Heights Hospital. Broussard had a history of heart problems and anemia.

She was transferred to intensive care at Lufkin Hospital on Feb. 5, 2005, after coming down with an infection.

"She was subsequently placed on a ventilator due to insufficient blood oxygen absorption," the suit says.

On Feb. 17, 2005, Broussard was transferred to the long-term care facility on the third floor of Christus Hospital St. Mary in Port Arthur, operated by Christus and Dubuis Health System.

In March, a tracheotomy was performed to install a breathing tube. For a few days, Broussard was able to eat blended food without incident.

"However, on April 5, 2005, she was given a 'swallowing test,' which Mrs. Broussard failed. She did not have the ability to swallow her food, and it began to seep into her lungs," the petition says.

On April 6, 2005, a feeding tube was inserted into Mrs. Broussard's stomach, and the nose feeder previously inserted was removed.

Even though she was still hooked up to feeding and breathing tubes, Broussard's vital signs were good and she was responsive to family members, so hospital staff scheduled Broussard to be discharged the following week.

The petition states that due to her imminent discharge, the defendants ordered the "finger light" heart monitor to be removed from Broussard's index finger.

"The heartbeat monitor was the only instant communication device hooked up between Mrs. Broussard and the nursing staff," the plaintiff argued.

The suit stated that Dorothy Broussard suffered a "cardiac incident" some time on April 9, 2005, and knocked the breathing tube out of her trachea. The incident was "unknown to the defendants or their staff," the plaintiff claims.

At around 2 p.m. that day, Preston Broussard and his son Cody came to the hospital to visit.

"Plaintiff Cody Broussard, the 10-year-old son of Mrs. Broussard, ran ahead of his father into his mother's hospital room. Cody Broussard was the first person to find the oxygen tube hanging on the side of his mother's hospital bed, and found his mother gagging for air," the lawsuit states. "Mrs. Broussard had stopped breathing, and according to Cody and his father Preston, Mrs. Broussard's skin color had turned 'purple.'"

The suit says she sustained hypoxic/anoxic encephalopathy, a severe reduction of oxygen in the blood which leads to a "softening of the brain." Broussard fell into a coma and was in a vegetative state until taken off life support on July 9, 2005. She died on July 12, 2005.

Preston Broussard says his wife failed to receive proper medical care, specifically because the defendants prematurely ordered her to be discharged. That decision led to the "wrongful decision to remove the finger light, which was the only safety device in place in the event of a catastrophic incident."

In addition, the plaintiff says Broussard should have been restrained, which would have prevented her from knocking the breathing tube out of her trachea.

Preston Broussard is represented by John C. Osborne PLLC of Houston.

The hospitals are in part represented by attorney Erin Lunceford of the Munisteri, Sprott, Rigby, Newsom & Robbins law firm.

Appeals Case Nos. 09-08-00044-CV and 09-09-00083
Trial Court Case No. E179-564

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