Judge Floyd's failure to exclude medical expert corrected by appeals court

By David Yates | Sep 17, 2008

Judge Donald Floyd

Three months after being tasked to decide if a Jefferson County judge abused his discretion when he denied a defense objection to the qualifications of a medical expert, justices on Texas' Ninth Court of Appeals have reversed and remanded his decision.

In June 2007, The Southeast Texas Record reported on a wrongful death suit filed by Preston Broussard, who claimed his 70-year-old wife Dorothy died because hospital staff neglected to realize her breathing tube had fallen out -- a discovery made instead by the couple's 10-year-old son.

Broussard's suit faulted Christus Hospital St. Mary, Dubuis Hospital of Port Arthur and Dr. Sreedhar Polavarapu for negligently failing to strap down his wife, a precaution the plaintiff claimed would have prevented Dorothy from knocking out her breathing tube.

In order to substantiate the medical negligence claim and meet Texas Civil law requirements, Broussard and his attorneys submitted the expert opinion of Dr. Jon D. Peters, a Virginia neurologist, who agreed that all the defendants breached the applicable standard of care when they failed to "adequately restrain and monitor Mrs. Broussard."

Christus and Dubuis jointly objected to Dr. Peters' "vague and conclusory" expert opinion, "because it was not written by an expert qualified to testify regarding the standards of care for nurses," the hospitals' motion stated.

Dr. Polavarapu also objected to Dr. Peters' expert opinion.

The defendants collectively filed a motion to dismiss the suit and exclude the expert opinion of Dr. Peters. On Jan. 17, Judge Donald Floyd, 172nd Judicial District, ruled that the defense motions lacked merit, and denied the motion to dismiss and the objection to Dr. Peters' expert testimony.

As the Record reported in June, Broussard's attorneys filed a response to the motions and called the hospitals' argument a "red herring," contending their suit deals with a series of negligent administrative decisions, not nursing protocol.

"Dr. Peters is clearly qualified to testify about the need to monitor and restrain patients such as Mrs. Broussard, who required long term care due to (her) decreased mental status," the plaintiffs' response further stated.

Shortly after, Christus and Dubuis jointly appealed Judge Floyd's ruling, and Dr. Polavarapu also filed his own appeal. Oral arguments before the Ninth District justices were heard June 26.

On Sept. 11, justices reversed Floyd's ruling and remanded the case.

"We hold that the expert report is deficient," the opinion, authored by Chief Justice Steve McKeithen, states. "Accordingly, we reverse the trial court's orders and remand the case to the trial court for further proceedings."

On appeal, the hospitals and doctor argued that the trial court abused its discretion in denying the motion to dismiss "because an expert report written by an unqualified expert does not meet the statutory requirements of Texas Civil Practice & Remedy Code section 74.351."

The state of Texas requires all medical malpractice suits be accompanied by an expert's opinion within 120 days after filing the suit.

However the plaintiffs contend the trial court was well within its discretion to deny the hospitals' motion to dismiss because an expert witness does not have to practice in the same field as the healthcare provider named in the suit.

"Peters's report and curriculum vitae do not explain how Peters's committee assignments and experience on staff at Reston Hospital make him familiar with the standards applied by hospitals under these circumstances," the opinion states. "Thus, the trial court abused its discretion in overruling St. Mary's and Dubuis' objections to Peters' report.

"The trial court erred in overruling the objections to the expert report served by Broussard and in denying the motions to dismiss Broussard's health care liability claims against Polavarapu, St. Mary and Dubuis. When an appellate court reverses the trial court's denial of a motion to dismiss a health care liability claim due to deficiencies in the elements."


According the plaintiffs' original petition, on April 9, 2005, the breathing tube connected to Dorothy Broussard was inadvertently removed.

"The hospital staff was not aware of the event because Mrs. Broussard's 'finger light' (heart monitor) had been removed earlier that day," the petition states. "Due to the lack of oxygen over an extended period of time (because the 'finger light' was removed, no one at the hospital was aware of the patient's plight), Mrs. Broussard fell into a coma, and passed away on July 12, 2005."

The plaintiffs claim that "defendants' failure to safely monitor and restrain Dorothy Broussard led to the deprivation of oxygen that caused Mrs. Broussard's untimely demise."

Broussard's medical saga began on Feb. 4, 2005, when she fell at her home in Sabine County. She was taken by ambulance to Hemphill Hospital and then transferred to Lufkin Memorial Heights Hospital. Broussard had a history of heart problems and anemia.

She was transferred to intensive care at Lufkin Hospital on Feb. 5, 2005, after coming down with an infection.

"She was subsequently placed on a ventilator due to insufficient blood oxygen absorption," the suit says.

On Feb. 17, 2005, Broussard was transferred to the long-term care facility on the third floor of Christus Hospital St. Mary in Port Arthur, operated by Christus and Dubuis Health System.

In March, a tracheotomy was performed to install a breathing tube. For a few days, Broussard was able to eat blended food without incident.

"However, on April 5, 2005, she was given a 'swallowing test,' which Mrs. Broussard failed. She did not have the ability to swallow her food, and it began to seep into her lungs," the petition says.

On April 6, 2005, a feeding tube was inserted into Mrs. Broussard's stomach, and the nose feeder previously inserted was removed.

Even though she was still hooked up to feeding and breathing tubes, Broussard's vital signs were good and she was responsive to family members, so hospital staff scheduled Broussard to be discharged the following week.

The petition states that due to her imminent discharge, the defendants ordered the "finger light" heart monitor to be removed from Broussard's index finger.

"The heartbeat monitor was the only instant communication device hooked up between Mrs. Broussard and the nursing staff," the plaintiff argued.

The suit stated that Dorothy Broussard suffered a "cardiac incident" some time on April 9, 2005, and knocked the breathing tube out of her trachea. The incident was "unknown to the defendants or their staff," the plaintiff claims.

At around 2 p.m. that day, Preston Broussard and his son Cody came to the hospital to visit.

"Plaintiff Cody Broussard, the 10-year-old son of Mrs. Broussard, ran ahead of his father into his mother's hospital room. Cody Broussard was the first person to find the oxygen tube hanging on the side of his mother's hospital bed, and found his mother gagging for air," the lawsuit states. "Mrs. Broussard had stopped breathing, and according to Cody and his father Preston, Mrs. Broussard's skin color had turned 'purple.'"

The suit says she sustained hypoxic/anoxic encephalopathy, a severe reduction of oxygen in the blood which leads to a "softening of the brain." Broussard fell into a coma and was in a vegetative state until taken off life support on July 9, 2005. She died on July 12, 2005.

Preston Broussard says his wife failed to receive proper medical care, specifically because the defendants prematurely ordered her to be discharged. That decision led to the "wrongful decision to remove the finger light, which was the only safety device in place in the event of a catastrophic incident."

In addition, the plaintiff says Broussard should have been restrained, which would have prevented her from knocking the breathing tube out of her trachea.

Preston Broussard is represented by John C. Osborne PLLC of Houston.

The hospitals are in part represented by attorney Erin Lunceford of the Munisteri, Sprott, Rigby, Newsom & Robbins law firm.

Appeals Case No. 09-08-00044-CV
Trial Court Case No. E179-564

Marilyn Tennissen contributed to this story

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