Validity of expert report called into question in med-mal over brain damaged newborn

David Yates Aug. 14, 2012, 7:54am


A physician is seeking to dismiss a medical malpractice case alleging a baby was born with severe brain damage because of a lack of treatment and assessment.

As previously reported, Brittany Stevens, on behalf of Ju'Kaylen Chretian, filed suit against Dr. Gene Berry and Christus Hospital St. Elizabeth on Feb. 13 in Jefferson County District Court.

To fulfill the requirements of Chapter 74 of the Texas Civil Code, Stevens filed two expert reports, one by Dr. Ezell Autrey, an obstetrician, and Anna Flournoy, a nurse, court records show.

On June 21 Dr. Barry filed an objection to the reports and motion to dismiss.

The objection argues Dr. Autrey's report does not state how she is qualified to render an opinion on causation and only musters a conclusory statement – making her findings deficient.

Because the report is insufficient to satisfy Chapter 74, Dr. Berry is asking the court to dismiss the case against him.

Court records show that on Aug. 13 Stevens filed a response, stating that Dr. Autrey has 27 years of experience and is qualified to render an opinion.

A hearing on the matter has been slated for Aug. 16 in Judge Bob Wortham's 58th District Court.

The lawsuit states that on Feb. 1, 2010, Stevens, 40 weeks pregnant, presented to Christus complaining of pain. She was discharged and returned the following day only to be discharged again.

"She returned the next day and Dr. Berry arrived two hours later. Ju'Kaylen's heart rate steadily decreased over the next several hours," the suit states. "JuKaylen was born septic and with severe brain damage from lack of oxygen."

Stevens alleges the defendants were negligent in assessing and treating the plaintiffs during the days before and after labor and delivery.

The plaintiffs are suing for their alleged past and future medical expenses, mental anguish, pain, impairment, disfigurement and lost wages, plus all court costs.

Woodlands attorney Tommy Hastings represents them.

Dr. Berry is represented by Matthew Prewett, attorney for thee Houston law firm Shepherd, Scott, Clawater & Houston.

Case No. A191-948

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