Operation to remove bullet not a med-mal issue, appellate brief argues

David Yates Jan. 12, 2010, 4:39am

Jefferson County Sheriff's Department booking photo of Joshua Bush from 2006.

A physician attempting to remove a bullet from a patient's head without his consent is not a medical malpractice issue, a plaintiff will argue before an appeals court in Beaumont later this month.

As the Southeast Texas Record reported in July 2008, Joshua Bush, the Groves resident who has a bullet lodged in his forehead, filed a lawsuit against Christus Health Southeast Texas and Dr. David Parkus. Bush accused the doctor of medical battery for trying to remove the projectile from his skull against his will.

Port Arthur police wanted the bullet because they believed it linked 17-year-old Bush to a robbery and shootout with the owner of a used car lot. He was eventually cleared of any criminal charges by a Jefferson County jury.

In the civil suit, defendants Christus and Dr. Parkus argued in a motion to dismiss that the suit should be thrown out because Bush was unwilling or unable to provide a medical expert to report on his behalf – a requirement under Texas civil law in all medical malpractice cases.

On Dec. 12, 2008, Judge Donald Floyd agreed and dismissed Christus and Dr. Parkus from the suit and awarded each defendant thousands of dollars for attorneys' fees.

The ruling led Bush's attorney, Danny R. Scott Jr., to appeal. The case is set for submission on briefs on Jan. 25 before the Texas Ninth District Court of Appeals in Beaumont.

Scott will argue that an expert report was not needed because Dr. Parkus' operation on Bush "did not create a physician-patient relationship" between the two, court papers say.

"The trial court should not have dismissed plaintiff's claims because his claims are not health care liability claims and do not fall under Chapter 74 of Texas Civil Code, and plaintiff was therefore not required to produce an expert report required by the Medical Liability Act," Bush's appeal brief states.

Conversely, the defendants contend that "there is no question that a physician-patient relationship is created any time a physician lays hands on a patient for the purpose of providing a medical procedure," court papers say.

Case history

On Oct. 29, 2006, Bush was taken by the Port Arthur Police Department to the emergency department at Christus Hospital St. Elizabeth in Beaumont. PAPD had a search warrant authorizing Dr. David Parkus to remove the bullet, however in his original lawsuit Bush claims he "did not consent to undergo this surgical procedure."

"In fact, Mr. Bush expressly told the physician, defendant Dr. David Parkus, to refrain from touching him and verbally prohibited Dr. Parkus from performing the surgery. On Oct. 29, 2006, and without Mr. Bush's consent, Dr. Parkus performed an invasive surgical procedure on Mr. Bush in an attempt to remove the bullet."

According to the complaint, as he began to work to remove the bullet, Dr. Parkus discovered that bone had begun to grow around the bullet and removal would require an operating room and additional equipment.

Bush alleges Dr. Parkus made "offensive physical contact" when he cut into his forehead with a scalpel, and claims he was strapped to gurney during the procedure.

The "invasive surgical procedure on plaintiff's person was intentional, reckless, extreme and outrageous," Bush alleges, and resulted in injury and mental anguish.

The suit also charges Christus with vicarious liability for allowing Dr. Parkus to perform the procedure.

In January 2007, Bush said he would allow the bullet to be removed by a surgeon of his choosing with his family present and the procedure videotaped and photographed.

Eventually, police dropped their efforts to have the bullet removed and pursued the case against Bush without it.

Case No. E182-086

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