Med-mal suit against ortho clinic to continue; justices reverse part, remand part

David Yates Mar. 8, 2010, 8:00am

A medical malpractice suit against Beaumont Bone & Joint Institute will go forward, thanks to an appellate decision partially affirming and reversing a lower court's ruling.

To keep several of its employees out of an ongoing lawsuit, the Beaumont Bone & Joint Institute filed an appeal in July asserting Jefferson County District Judge Gary Sanderson erred when he denied the medical provider's motion to dismiss.

On Thursday, March 4, justices seated on the Texas Ninth District Court of Appeals issued a memorandum opinion that partially reversed Judge Sanderson's ruling that kept several Beaumont Bone & Joint employees trapped in the ongoing litigation

In a lawsuit filed in July 2008, plaintiff Ted Slaughter claimed he was not promptly treated by the orthopedic center after cutting his left hand in a circular saw. Slaughter alleges the delay led to the amputation of his right index finger.

The suit named the medical practice and one of its physicians, Dr. John Taylor, as defendants.

A year later, Slaughter amended his petition, adding Dr. Charles Domingues, two appointment schedulers and a medical assistant as defendants.

Dr. Domingues was one of the defendants Judge Sanderson failed to dismiss from the suit. However, justices overruled him.

"As to the liability claim against Beaumont Bone & Joint for Dr. Domingues' alleged negligent conduct, we reverse the trial court's order denying the motion to dismiss," states the memorandum opinion, authored by Justice David Gaultney.

As required by Texas Civil law, Slaughter included an additional expert report regarding the actions of the new defendants.

In response, Beaumont Bone & Joint filed a motion to dismiss Dr. Domingues and the support staff at the clinic on June 8, arguing the plaintiff's medical expert report was untimely and "defective in content."

Two weeks later, Judge Sanderson denied the motion, which led Beaumont Bone & Joint to file an appeal.

The clinic, in its appellate brief, argued that the "trial court abused its discretion in failing to dismiss (Slaughter's) claims of direct negligence ... when these claims were not (thoroughly) discussed in any expert report."

Conversely, Slaughter argued the appellate court lacks jurisdiction over the matter and claimed the expert report does not have to conform to Texas civil law since "no new claims were made in the amended petition."

According to his original complaint, Slaughter saw Dr. John Taylor on July 20. Because Dr. Taylor was leaving town, he informed Slaughter that Dr. Kramer would attend to him.

That appointment was scheduled for July 26 and Dr. Kramer noted that Slaughter had necrosis in the palm of his hand and problems with the index finger, court papers say.

Kramer also noted that there had been confusion in scheduling Slaughter's appointment.

Slaughter claims Dr. Kramer noted that the finger was only tenuously viable from a vascular standpoint and would likely need amputation. The following day, Dr. Kramer performed surgery and amputated Slaughter's index finger.

"As to the vicarious liability claims against Beaumont Bone and Joint for the alleged negligence of Dr. Taylor and the claims that assert negligence related to the scheduling of an appointment with Dr. Kramer, we conclude the trial court did not abuse its discretion by denying the defendant's motion to dismiss," the opinion states.

"As to the negligence claims against Beaumont Bone & Joint not related to the scheduling of Dr. Kramer's examination and not related to the claims against Dr. Taylor, we reverse the trial court's order denying the motion to dismiss."

In his suit, Slaughter claims the alleged "confusion" and delay in treatment is medical negligence and is seeking exemplary damages for their alleged "heedless and reckless disregard of (his) rights."

"To date, plaintiff continues to have stiffness of the remaining middle finger ... and lack of sensation in his palm," the suit says. "Because of the loss of his left index finger, Slaughter is no longer able to perform many of his daily functions."

In addition to exemplary damages, Slaughter is suing for mental anguish, medical expenses, disfigurement, pecuniary loss, impairment and actual damages.

Slaughter's attorney, Micky Das of the Tyler & Das Law firm in Houston, is also arguing that Texas' medical-malpractice damage caps are unconstitutional.

Beaumont Bone & Joint is represented in part by attorneys Gary Sommer, Matthew B.E. Hughes and R. Gregg Byrd of Boston & Hughes PC in Houston.

Appeals case No. 09-09-00316-CV
Trial case No. B182-079

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