Appeals court dismisses Baptist Hospital from med-mal suit, again

David Yates Feb. 2, 2010, 7:15am

Memorial Hermann Baptist Beaumont Hospital

For the second time in two months a local hospital has been dismissed from a medical-malpractice suit by appellate justices, and this time it also came away with attorneys' fees.

On Dec. 14, Memorial Hermann Baptist Beaumont Hospital first had its appeal granted by justices seated on the Ninth District Court of Appeals of Texas.

The family of the late Laura Sebile filed suit against Baptist Hospital, two doctors and an anesthesiologist, alleging her death was caused by their negligence.

Plaintiff Paul Sebile, along with seven of his children, claimed his wife -- who was 70-years old and morbidly obese -- died on Nov. 8, 2006, after doctors performed an "unnecessary heart surgery."

In January, justices in Beaumont ruled that the plaintiffs' expert report failed to adequately address the hospital's alleged negligence.

Even though Baptist came away with a victory, the hospital asked for a rehearing. On Jan. 28 the court withdrew its previous opinion and substituted a new one. It too found the plaintiff's expert report to be inadequate.

But this time justices also awarded Baptist attorney's fees and dismissed the suit with prejudice.

"We grant the motion for rehearing filed by appellant Baptist Hospitals of Southeast Texas, doing business as Memorial Hermann Baptist Beaumont Hospital. Accordingly, we withdraw our previous opinion of Dec. 10, 2009, and substitute the following in its place," states the current opinion, authored by Chief Justice Steve McKeithen.

"We reverse the trial court's order denying Baptist's motion to dismiss and remand the case to the trial court for entry of a judgment dismissing appellees' claims against Baptist with prejudice and to award Baptist reasonable attorney's fees and court costs."

In the original suit filed in 2008, the plaintiffs attached the expert opinion of Dr. Shabir Bhimji, a cardiothoracic surgeon.

In response, Baptist Hospital and Dr. Juan Gonzales, the anesthesiologist named as a defendant, separately objected to the plaintiffs' allegations and expert report, calling the suit's accusations vague and broad and the expert report unspecific.

"The plaintiffs' expert report never articulates how (Dr. Gonzales') alleged negligence caused Mrs. Sebile's death," an appeals brief states.

On July 10 a hearing to dismiss was held in Judge Gary Sanderson's 60th Judicial Court, where the judge denied both defendants' motions "with little guidance as to why," court papers say.

The ruling prompted the defendants to file individual appeals.

On appeal, the hospital and doctor argued that the plaintiffs' expert report does not address the hospital's alleged negligence.

"The report has only one conclusory sentence on causation ... that an unspecified drug ordered by the nurses played some unspecified role," the hospital's appeals brief states.

Both defendants contended that Laura Sebile's death "can be (solely) traced to the surgical complication" she suffered when the surgeon punctured her heart.

Justices agreed.

"Bhimji's statements as to the nurses are conclusory, since they are not linked to any facts, and they do not explain precisely what the nurses' alleged departure from the applicable standards of care were, or how the nurses' alleged negligence caused or contributed to Sebile's death," McKeithen wrote in the first opinion.

"Bhimji's report fails to discuss causation with sufficient specificity to inform Baptist of the conduct of its nurses that appellees have called into question and to provide a basis for the trial court to conclude that appellees' claims have merit. We sustain Baptist's issue. Accordingly, we reverse the trial court's judgment and render judgment dismissing appellees' claims against Baptist (and Dr. Gonzales)."

Case background

The original suit alleges that Laura Sebile was discharged on advice and pain pills even though a chest X-ray found evidence suggesting congestive heart failure.

Dr. Arfeen Qamar referred Laura Sebile to surgeon Dr. Fallon Gordan, and she was immediately booked for a biopsy of her lymph nodes on Oct. 25, 2006.

According to the complaint, neither doctor considered that congestive heart failure may have been the possible reason for Laura Sebile's problems.

In addition, Dr. Qamar did not order a cardiology consult before surgery despite Laura Sebile's past open heart surgery, the suit states.

Paul Sebile claims before the biopsy, his wife was placed under anesthesia by Dr. Juan Manuel Gonzalez, who allegedly did not check her medical history.

Gordan, who had ordered the anesthesiologist, also failed to perform necessary tests, the suit states.

During the "unnecessary" and "risky" procedure, Gordan punctured Laura Sebile's heart, according to the complaint.

A cardiac surgeon was called in to stop the massive bleeding, which had started after the puncture, the suit states.

Laura Sebile could not eat or talk after the incident, developed multi-organ failure and died 13 days later on Nov. 8, 2006, according to the complaint.

Later, Paul Sebile claims he found out the only samples ever sent to pathology were rib fragments, not lung tissue as originally indicated.

According to the complaint, Laura Sebile suffered gross abuse, extensive neglect and undue pain while she was a patient at the hospital and under the care of its doctors.

"Mrs. Sebile's basic needs were ignored and her dignity was disregarded," the suit states.

The Sebile family is represented by Jane S. Leger of Provost Umphrey Law Firm in Beaumont.

Baptist Hospital is represented in part by attorney Kendall Gray.

Trial case No. B182-575
Appeal case No. 09-09-00333

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