Appeals court rejects expert reports in med-mal case

David Yates Dec. 21, 2009, 10:19am

Several defendants fingered in a medical malpractice case had their appeal over medical expert qualifications granted by Beaumont justices on Thursday, Dec. 17.

In November 2008, the Southeast Texas Record reported on an Orange couple who filed suit against eight doctors and three hospitals, alleging the woman suffered from a stroke after doctors inserted a central line into her veins.

After the case's presiding judge shot down the defendants' motions to dismiss, the Texas Ninth District Court of Appeals was tapped to decide whether or not the plaintiffs' medical reports met Texas Civil Code requirements.

Ultimately, the Ninth District affirmed only one of the plaintiff's expert reports against a defendant physician, while reversing and remanding the reports against the cases' three other defendants.

Plaintiff Ivalyn Anderson, age 69 at the time of the incident, had a subcutaneous central venous access device put in her veins while receiving chemotherapy treatments. She allegedly suffered a stroke after the line was inserted.

Anderson and her husband, Lee O. Anderson, filed a lawsuit in Jefferson County District Court.

Included as defendants are Dr. Samuel J. Pangburn, Dr. Charles S. Day, Dr. Nestor Cagol Punay, the Julie and Ben Rogers Cancer Institute, Memorial Hermann Baptist Beaumont Hospital and Memorial Hermann Baptist Orange Hospital. Pangburn is the doctor who inserted Anderson's central line.

"Appellants filed motions to dismiss that challenged appellees' expert reports," Justice David Gaultney wrote in the court's opinion. "The trial court denied the motions. We affirm as to the report concerning the claim against Pangburn.

"Because the reports are inadequate for the claims against Day, Punay, and Baptist Hospital, we reverse and remand the case to the trial court for further proceedings consistent with this opinion."

During her treatment, which occurred between Aug. 16 and Sept. 21, 2006, Ivalyn suffered a stroke and a traumatic rupture of her subclavian artery, causing severe injuries to her brain and heart, court papers say.

The couple alleges the injuries were due to the forceful misplacement of the subcutaneous central venous access device in her heart, repetitive failure to diagnose misplacement of device and continuous subsequent use of the misplaced venous device.

To substantiate their claims, the plaintiffs submitted the expert reports of Drs. Louis Silverman and Joel Meyer. It is a requirement under Texas' Civil Code to submit an expert report when filing a medical malpractice claim.

The defendants objected to the validity of the expert reports and filed a motion to dismiss, arguing that neither doctor was qualified to testify on Ivalyn's brain condition.

On March 27, Judge Gary Sanderson of the Jefferson County 60th District Court denied the motion, which prompted numerous defendants to file an appeal.

"The expert reports are deficient in that they do not sufficiently address how Baptist's conduct caused the injury," the opinion states.

"Because the reports are deficient as to one of the required elements, the court has discretion to remand the case for the trial court to consider granting a 30-day extension of time to cure the deficiencies. The reports fail to comply with the requirements of Chapter 74 with respect to the claims against Day, Punay and Baptist Hospital."

On appeal, the defendants argued Judge Sanderson abused his discretion when he concluded the plaintiffs' expert reports were up to spec.

They also argued there is medical evidence showing the chemo line did not cause Ivalyn's stroke and, even if it did, the plaintiffs' experts lack the knowledge and experience to testify on such a complex brain condition.

Conversely, the plaintiffs contended the judge did not abuse his discretion and the defendants are at fault for not halting her treatment.

In their appeals brief, they argued since Ivalyn's treatment, she has become accident prone and has steadily declined mentally and physically.

Specifically, the plaintiffs claim Dr. Pangburn failed to consult a specialist in the surgery field, failed to insert the subcutaneous central venous access device in the right portion of the heart, failed to force the device into Ivalyn's aorta and failed to remove and report the suspected defective catheter.

They also claim Pangburn and the Cancer Institute failed to fully disclose the risks of the surgery.

The doctors' and hospitals' actions "involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Plaintiffs and others," the suit states.

The Andersons are seeking unspecified damages, plus prejudgment interest at the maximum rate, post-judgment interest at the legal rate, costs and other relief the court deems just.

Brett S. Thomas of Beaumont is representing them.

Jefferson County Case No. B182-642
Appeals Court Case No. 09-09-00169

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