Medical defendants lose appeal challenging expert reports

David Yates Feb. 8, 2011, 5:27am


The Ninth Court of Appeals on Feb. 3 shot down several medical defendants hoping to end a medical-malpractice case by challenging the plaintiffs' expert reports.

In July 2008, Dianne Swan, representing the estate of Jennifer Renee Abshire, sued appellants Beaumont Spine Pain & Sports Medicine Clinic, Dr. John Webb Jr. and Beaumont Medical Clinic, alleging the defendants caused the death of Abshire.

Court records show Dr. Webb, whose place of business is Beaumont Spine, treated Abshire for a herniated disc. Dr. Webb referred Abshire to Dr. Merrimon W. Baker, an orthopedic surgeon.

Dr. Baker performed a bilateral lumbar laminectomy and diskectomy on Abshire, puncturing her right iliac artery without noticing, court papers say.

The transected artery remained undetected, causing Abshire to go into cardiac arrest and die.

Following Texas civil code, Abshire's family provided expert reports by Dr. J. Michael Simpson and Dr. Keith E. Miller shortly after filing their civil claim.

In their expert reports, Dr. Simpson and Dr. Miller asserted Dr. Webb was negligent for referring Abshire to Dr. Baker without investigating him, and therefore partly responsible for her death, court records show.

Webb, and his businesses, filed motions complaining of the adequacy of the reports and asked Judge Gary Sanderson, 60th District Court, to dismiss them from the lawsuit.

On July 1, Judge Sanderson denied the motions, forcing the defendants to file an appeal three weeks later, court records show.

On Feb. 3, Ninth Court justices issued an opinion affirming the lower court's ruling.

"According to the experts, Dr. Baker has a well-known reputation for incompetence and an investigation into Dr. Baker's background ... would have revealed this information," Chief Justice Steve McKeithen writes in the court's opinion.

"Nevertheless, Dr. Webb referred Abshire to Dr. Baker, a physician with a history of providing substandard medical care. Dr. Webb's records did not show that he conducted an investigation into Dr. Baker's reputation."

The Ninth Court found that the plaintiffs' expert reports complied with Texas law, ruling that Judge Sanderson did not abuse his discretion in approving them.

Houston attorney Marc Calvert represents Webb and Beaumont Spine.

Beaumont attorney Brain Sutton represents the plaintiffs.

Appeals case No. 09-10-00347
Trial case No. B182-128

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