Ninth Court finds expert report sufficient in malpractice suit

David Yates Mar. 12, 2012, 9:21am


Last Thursday, the Ninth Court of Appeals affirmed a lower court's ruling affirming the adequacy of an expert report in a medical malpractice suit.

As previously reported, Ernesto Escareno filed suit against Beaumont physician John Schmidt and his employer, Port Arthur Surgical Association, on Feb. 16, 2011, in Jefferson County District Court. Escareno claims a botched surgery resulted in a transection of his common bile duct.

Court records show that on July 5, Dr. Schmidt filed a motion objecting to the expert report of Dr. Michael Leitman, who allegedly failed to adequately explain an opinion on causation. Under Chapter 74 of the Texas Civil Code, med-mal plaintiffs are required to submit an expert report.

Judge Donald Floyd, 172nd District Court, denied the motion on Nov. 3, prompting Dr. Schmidt to file his appeal three weeks later, court records show.

On March 8, the Ninth Court issued an opinion authored by Justice Hollis Horton, which found the report does constitute a good faith effort explaining how Escareno's injury was caused and how his injury could have been avoided.

"We conclude that the trial court did not abuse its discretion in ruling that Dr. Leitman's report met the requirements for expert reports under Texas Law," the opinion states.

"We also hold the trial court did not abuse its discretion in denying Dr. Schmidt's motion to dismiss. Having overruled each of Dr. Schmidt's issues, we affirm the trial court's order.

According to the original petition, on Dec. 2, 2008, Escareno sought medical treatment from Dr. Schmidt, which included a video laparoscopy and the surgical removal of a gallbladder.

"As the result of defendant's negligence, Escareno suffered a transected common bile duct and required further surgery and follow-up care," the suit states, adding that Dr. Schmidt negligently failed to detect the condition and provide reasonable medical care.

Escareno is suing for his incurred medical expenses and alleged mental anguish.

Beaumont attorney Brian Sutton of Sutton & Jacobs represents him.

Houston attorney Marc Calvert represents Dr. Schmidt.

Trial case No. E189-375
Appeals case No. 09-11-00662-CV

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