Texas SC forces appeals court to take another look at doctor's appeal

By David Yates | Sep 3, 2008

Justices seated on the Texas Supreme Court reversed a lower court's ruling Aug. 29, forcing the Second Court of Appeals to review a physician's medical malpractice appeal.

After Gloria Morehead hemorrhaged to death following a fall at a hospital, her family filed a suit in Tarrant County against the treating physician, Dr. Mike Bismar.

Court papers show that Dorothy, Vaughn, and James Morehead III filed the suit on behalf of Gloria Morehead, claiming Dr. Bismar failed to timely diagnose and treat Gloria for shock due to an internal hemorrhage she sustained after a fall in the hospital.

"The Moreheads served a curriculum vitae and expert report supporting their claim within 120 days of filing, as required by (a Texas civil) statute," the Texas Supreme Court per curiam opinion states.

"Dr. Bismar moved for dismissal and attorney's fees on the ground that the expert report was inadequate, but the trial court granted the Moreheads 30 days to cure deficiencies in the report and then denied the motion."

In response, Dr. Bismar filed a timely interlocutory appeal with the Second Court of Appeals, which dismissed for want of jurisdiction.

"For the reasons stated in Lewis v. Funderburk � we hold that Dr.
Bismar's motion seeking dismissal and fees was a motion pursuant to section 74.351(b), and thus reviewable by interlocutory appeal when the trial court denied it. The court of appeals erred by concluding otherwise."

"Accordingly, we grant the petition for review, and without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals' judgment and remand the case to that court to consider the remaining arguments raised by the interlocutory appeal."

Dr. Bismar is represented by attorneys J. Wade Birdwell, James G. Stouffer Jr. and Leslie Ann Dillon.

The Moreheads are represented in part by attorney Constance M. Maher.

The case was submitted Jan. 4.

SC No. 08-0009

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