Appeals court reverses ruling on medical expert's testimony in Memorial Hermann case

By David Yates | Aug 5, 2008

Attorneys for Memorial Hermann Baptist Beaumont Hospital convinced a higher court recently to reverse and remand a lower court's ruling denying a motion challenging a medical expert's validity.

Attorneys for Memorial Hermann Baptist Beaumont Hospital convinced a higher court recently to reverse and remand a lower court's ruling denying a motion challenging a medical expert's validity.

On July 31, the Texas Ninth District Court of Appeals reversed 136th District Judge Milton Shuffield's ruling allowing the report of a plaintiff's medical expert, citing in a memorandum opinion written by Justice Hollis Horton that the report was inadequate.

Memorial Hermann filed its appeal in February 2008, challenging the trial court's denial of its motion regarding the adequacy of an amended report under Texas civil law.

"We agree that the amended report did not adequately explain the factual basis for the expert's causation opinion on how a surgeon's absent operative report delayed the patient's diagnosis and treatment," Horton wrote. "Therefore, we reverse the trial court's order and remand this cause for further proceedings consistent with this opinion."

Between August 2005 and February 2006, Rickey Carter had four surgeries related to his gastrointestinal problems, two at Memorial Hermann and then two at St. Luke's Episcopal Medical Center in Houston. Dr. Jerome Schrapps performed both surgeries in Beaumont, the opinion states.

"In Carter's first surgery, on August 12, 2005, Dr. Schrapps re-sectioned the first portion of Carter's duodenum and did a truncal vagotomy.

"On Aug. 31, Dr. Schrapps performed Carter's second surgery to explore for a leak related to the prior surgery, but none was found," the opinion states

According to court documents, Carter was discharged from Memorial Hermann Baptist in mid-September 2005, when "drainage from the surgical drains decreased and this was interpreted as representing closure of the fistula."

Later, at St. Luke's, Carter underwent a third surgery for drainage of the abscess, debridement of necrotic pancreas and placement of a cholecystostomy tube. Finally, on Feb. 3, 2006, Carter had his fourth surgery in order to correct a pancreatic fistula.

A Truncal vagotomy severs the trunk of the vagus nerve as it enters the abdomen.

On Dec. 5, 2006, Carter sued Dr. Schrapps, and alleged he injured his pancreatic duct during the first surgery.

Memorial Hermann was not named as a defendant in the plaintiff's original petition, but the hospital was added in a second amended petition filed Aug. 1, 2007.

Carter claimed Memorial Hermann failed to ensure that Dr. Schrapps filed an operative report regarding Carter's first surgery; failed to enforce its policy to require that physicians dictate and file operative reports; and failed to have a policy and procedure that required surgeons to timely dictate and file an operative report in the patient's medical records, the opinion states.

On Nov. 5, 2007, Carter filed an expert report authored by Dr. James Macho, a general surgeon, to support his claims against Memorial Hermann.

The hospital objected to the report's sufficiency and asserted that it was conclusory regarding how Memorial Hermann's acts or omissions caused delays in Carter's treatment, the opinion states.

"(Memorial Hermann) Baptist further objected that Dr. Macho's report did not demonstrate that he was qualified as an expert on administrative standards applicable to hospitals," the justices wrote.

After conducting a hearing on Baptist's objections, Judge Shuffield gave Carter a 30-day extension to correct the deficiencies in the expert report.

On December 12, 2007, Carter filed an amended expert report which noted that the operative report on Carter's first abdominal surgery was "dictated approximately one year later" on July 24, 2006, according to court documents.

Dr. Macho's amended report contained his theory about how the absence of the first operative report harmed Carter. He wrote that it took "several months for surgeons to discover why Rickey Carter was having medical complications." After discovering the problem, surgeons at St. Luke's performed a surgery "to drain Rickey Carter's [accessory] pancreatic duct," court documents show.

According to Dr. Macho, the operative report, when coupled with Rickey Carter's post surgical symptoms, reveals that there was in all likelihood an injury to Rickey Carter's pancreatic duct. Had the operative report been complete and done in a timely manner, the surgeons at St. Luke's Hospital would have been able to identify what was causing Rickey Carter's symptoms and perform surgery to re-connect the pancreatic duct much sooner.

But Memorial Hermann objected again, arguing that Dr. Macho's amended report did not explain how the alleged delays in Carter's treatment could be attributed to the absent report from the first surgery.

"Baptist also renewed its objection that Dr. Macho's report did not demonstrate his qualifications to render opinions on the standard of care hospitals follow on their record-monitoring practices," court documents state.

This time, Judge Shuffield dismissed the hospital's objections and Memorial Hermann. The appellate court reversed the ruling and remanded the case.

However, Chief Justice Steve McKeithen broke ranks and wrote a dissenting opinion.

McKeithen wrote that Dr. Macho's report is "neither conclusory nor speculative."

"The report adequately states the standard of care regarding post-operative reports, how Baptist allegedly breached the standard of care, and how Baptist's alleged breach of the standard of care caused Carter's injuries," McKeithen wrote.

"The report explains that Baptist's alleged breach of the standard of care deprived Carter's treating physicians of important information concerning the full extent of Carter's initial surgery and the complications during that surgery, and that this alleged breach delayed the discovery of the true cause of Carter's post-operative symptoms and necessitated multiple subsequent surgeries."

However the majority agreed that for an expert to be qualified to provide opinions in claims against hospitals he must practice in a field that involves the same type of treatment that was delivered to the claimant by the health care provider, have knowledge of the accepted standards of care for treatment and show he is qualified to offer an expert opinion regarding the accepted standards of care.

"But, an opinion is not enough. As the Texas Supreme Court has held, to establish causation, a report must contain sufficient facts explaining the expert's conclusions and must show causation beyond mere conjecture," the justices wrote.

"In this case, we conclude that Dr. Macho did not provide sufficient facts to sufficiently explain how Baptist's alleged omissions caused delays in Carter's treatment. Instead, Dr. Macho's amended report bases its causation analysis on several assumptions about Carter's treatment at Baptist and at St. Luke's that are inconsistent with the medical records placed in evidence at the hearing," the court said.

Baptist was represented in part by attorney James R. Old Jr.

Carter was represented in part by attorney Rex Peveto.

Appeals case No. 09-08-067 CV

Trial case No. D178-269

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