Appeals court approves plaintiffs' medical expert

David Yates Oct. 24, 2011, 8:17am


On Oct. 20, the Ninth Court of Appeals found that a lower court did not abuse its discretion by denying a group of medical defendants' motion to dismiss.

The appeal centers on the medical treatment of Georgie Ogden, who was admitted to Memorial Hermann Baptist Beaumont Hospital complaining of abdominal pain in April 2009 and died a month later.

On behalf of Georgie Ogden, Robin Ogden and Iris Roubique filed a lawsuit suit against the treating physicians and Southeast Texas Medical Associates on Nov. 22, 2010, in Jefferson County District Court. The suit claims more medical tests and attentive care could have saved Georgie Ogden's life.

Georgie Ogden was admitted Memorial Hermann on April 15, 2009. Her treating physicians included defendants Drs. James Holly and John Vardiman.

She was discharged four days later, even though she was "extremely weak" from undergoing an abdominal procedure, the suit states. Still experiencing pain, Ogden returned to the hospital on April 20 and had an abdominal CT scan two days later.

"An emergent endoscopy confirmed that unfortunately she was bleeding from an area where an abscess had been discovered," the suit states. "The plaintiffs were told that it was just going to be a matter of time before Mrs. Ogden died."

Ogden was transferred to hospice a week later and died on May 12, 2009.

The plaintiffs claim the defendants breached the standard of care and negligently failed to adequately detect and treat her condition and are suing for all wrongful death damages allowable under law.

To meet the requirement of Chapter 74 of the Texas Civil Code, the plaintiffs submitted the expert report of Dr. Robert Mendelsohn, who concluded that Georgie Ogden should never have been discharged because her condition was declining.

In response to the report, the defendants filed a motion to dismiss, arguing that Mendelsohn's report fails to adequately state the standard of care; fails to affirmatively state the correct course of conduct; and uses "broad generalizations," court papers say.

Judge Gary Sanderson, 58th District Court, denied the motion, forcing the defendants to file an appeal on July 19.

On Oct. 20 the Ninth Court issued a memorandum opinion, authored by Chief Justice Steve McKeithen, affirming Judge Sanderson's decision.

"We, therefore, conclude that the trial court was justified in finding that Mendelsohn's report discusses the standard of care, breach, and causation with sufficient specificity to inform appellants of the specific conduct called into question," the opinion states.

"In summary, we conclude that the trial court did not abuse its discretion by denying appellants' motion to dismiss. We affirm the trial court's order."

Houston attorney Craig Lewis represents the plaintiffs.

T. Marc Calvert of Houston represents the defendants.

Case No. B188-847

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