Justices order judge to dismiss doctors from med-mal, award attorney's fees

David Yates Sep. 14, 2010, 2:11pm

A pair of doctors named in a medical-malpractice lawsuit will soon see their names wiped from the docket, thanks to a recent opinion issued by the Ninth Court of Appeals of Texas.

Two years following the death of their newborn son, Kenneth and Destinie Lewis filed a suit in May 2009 against numerous health care providers, including Dr. Nancy Ngo, a pediatrician, and Dr. Durga Annavajjhala, a neonatologist.

Court papers show the Lewises' son, Ian, died May 11, 2007, from a preventable disease transferred from the mother during birth. An "erroneous mistake" in Destinie's medical record caused her not to receive antibiotics when her membrane ruptured.

Shortly after the suit was filed, Dr. Ngo and Dr. Annavajjhala, who were both brought in after the child was born, filed separate motions to dismiss, asserting the couples' expert report failed to comply with section 74.351 of the Texas Civil Practice and Remedies Code.

To comply with their obligation under Texas law, the couple had filed an amended report from Dr. Bradley Thach, who holds board certifications in pediatrics and neonatal-perinatal medicine, court papers say.

Dr. Ngo and Dr. Annavajjhala maintained in their respective motions to dismiss that their treatment did not result or hasten Ian's death.

Judge Donald Floyd, 172nd District Court, denied both motions. The doctors, claiming the judge erred, filed an appeal on March 25.

On Sept. 9 Ninth Court justices reversed Judge Floyd's order and remanded the case back to his court. Justices instructed him to dismiss the case and award the physicians attorney's fees, court papers say.

"Because the Lewises' expert report does not comply with the requirements of Texas law, we reverse the trial court's order, and we remand the case to the trial court," states the court's memorandum opinion, authored by Justice Hollis Horton.

"Upon its receipt of the case, we instruct the trial court to enter an order dismissing the plaintiffs' claims against Dr. Ngo and Dr. Annavajjhala, and to award reasonable attorneys' fees and taxable court costs."

Justices concluded Judge Floyd erred when he determined that Dr. Thach's report represented a good-faith effort to explain the causal relationship between Dr. Ngo's and Dr. Annavajjhala's acts and omissions and Ian's death, the opinion states.

Justices found that Dr. Thach's report inadequately explained how Ian's death was caused by Dr. Ngo or by Dr. Annavajjhala.


The case arises from complications that occurred during Destinie's pregnancy. Dr. Christopher Serrano, a defendant, was Destinie's obstetrician and delivered her child.

On April 9, 2007, Dr. Serrano ordered prenatal lab tests; one of these tests determined that Destinie was positive for Vaginal Group B Streptococcus (GBS), court papers say.

Dr. Serrano's office erroneously recorded Destinie's GBS test as being negative. On May 2, 2007, Dr. Serrano sent Destinie to the hospital with orders that she be sent straight to Labor and Delivery for PIH labs. Destinie's hospital records include a neonatal admission summary, and it too erroneously reports that Destinie was GBS negative.

On the morning of May 3, 2007, Dr. Serrano induced labor. On the afternoon of May 3, 2007, Dr. Serrano ordered that Destinie's child be delivered by cesarean section. At 5:21 p.m., Dr. Serrano delivered Ian by cesarean section.

He died a week later from complications related to his GBS infection, court papers say.

Dr. Annavajjhala is represented by Houston attorney Marc Calvert.

Dr. Ngo is represented by attorney John R. Shepperd.

The Lewis family is represented in part by Houston attorney Jason Webster of the law firm Matthews and Associates.

Trial case No. E184-156

Appeals case No. 09-10-00140-CV

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