Appeals court: Operation to remove bullet is a health care issue

David Yates Apr. 6, 2010, 12:18pm

After Joshua Bush's lawsuit was dismissed for lacking a medical expert report, he filed an appeal last year arguing that a physician attempting to remove a bullet from a patient's head without his consent is not a medical malpractice issue.

However, Bush's argument didn't hold much water with the Ninth District Court of Appeals of Texas, as justices released an April 1 opinion stating his claim is indeed a health care liability issue.

In July 2008, the Southeast Texas Record reported that Bush, the Groves resident who has a bullet lodged in his forehead, filed suit against Christus Health Southeast Texas and Dr. David Parkus � accusing 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 then 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.

In a motion to dismiss the civil suit, defendants Christus and Dr. Parkus argued the suit should be tossed 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.

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

"Plaintiff Bush appeals the trial court's orders dismissing the underlying lawsuit as to both defendants ... as a result of Bush's failure to timely file an expert report," the opinion states, authored by Justice Charles Kreger. "Because we find that Bush's claims are health care liability claims we affirm the trial court's orders."

On appeal, Bush's attorney Danny R. Scott Jr. argued that an expert report was not needed because Dr. Parkus' operation on Bush "did not create a physician-patient relationship" between the two.

"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.

The defendants countered Scott by arguing "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.

After examining arguments, justices found that while a physician-patient relationship is generally necessary to establish liability for medical malpractice, it does not affect the threshold question of whether the plaintiff asserts a health care liability claim and must comply with the filing requirements under the Act.

"Because we conclude the claims asserted by Bush are health care liability claims and no expert report was timely filed, we find the dismissal of the suit and the award of attorneys' fees to defendants were proper," the opinion states. "We affirm the orders of the trial court dismissing the suit for plaintiff's failure to comply with the Act."

The case was submitted on briefs on Jan. 25.

The defendants were represented by attorneys John P. Scott and Erin E. Lunceford.

Case No. E182-086

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