Plaintiff's expert testifies in amputee's medical malpractice trial

By David Yates | Feb 4, 2009

Jerry Sylvester may have lost his leg because treating physicians mislabeled his gunshot wound as "low energy," said the plaintiff's medical expert, as testimony continued this week in the trial of Sylvester vs. Christus.

Dr. Swan, the plaintiff's medical expert, testified this week that Sylvester's wound was mislabeled, negligently cared for and not properly cleaned – all factors that led to the amputation of his right leg.

The medical malpractice trial began Jan. 21 in Judge Milton Shuffield's 136th District Court, and is expected to conclude in late February.

Sylvester sued Christus Hospital St. Elizabeth, Dr. Charles Domingues, his colleague Dr. Daniel Thompson and the Beaumont Bone & Joint Institute in 2006 for failing to save his leg from amputation. Christus settled out of court in December.

Sylvester was shot in the leg on April 14, 2004, and received emergency care at Christus Hospital St. Elizabeth and then continued treatment with Drs. Domingues and Thompson at Beaumont Bone & Joint.

According to testimony the bullet shattered Sylvester's fibula.

Dr. Domingues was the orthopedist on call the night Sylvester was shot. Dr. Domingues was paged to come to Christus, and when he arrived around 2 a.m. he found that Sylvester's wound had already been cleaned and bandaged.

Dr. Domingues testified that he inspected the cleaned wound and after evaluation, decided blood was still flowing to the leg.

Dr. Swan testified that the defendant doctors should have irrigated the wound and poured "copious amounts of saline" into the damaged area – making sure all debris and bacteria were removed from the wound.

In the subsequent surgeries to repair Sylvester's leg, testimony and court records show that no debris was ever found in Sylvester's wound.

Dr. Swan further testified that the wound was mislabeled as "low energy," a category calling for less aggressive care.

Although Dr. Domingues testified that he re-cleaned the wound and prescribed antibiotics for Sylvester, the plaintiff's counsel argue that had the doctor properly cleaned the wound, Sylvester would still have his leg.

"There are forces beyond our control," Dr. Domingues testified. "We can facilitate healing, but we cannot command it."

Dr. Domingues also said that even though the bullet shattered a bone in Sylvester's leg, the wound "was stable" and that he "wasn't expecting him to lose his leg, but it was certainly a possibility."

Dr. Swan testified that wound was not stable and needed more urgent care.

Case history

The physicians are defending themselves against 20 acts of alleged general negligence listed in Sylvester's original lawsuit, such as failing to detect his condition and failing to run the appropriate tests.

In court papers, the defendants maintain that the loss of Sylvester's leg "was solely caused by the occurrence in question (the shooting)."

"Defendant(s) possessed no right of control and had no responsibilities … for factors which solely caused the occurrence in question," the defendants' original answer states.

Sylvester is represented by Brian Sutton of the Sutton & Jacobs law firm in Beaumont.

The defendants are represented by Marion Kruse Jr. of the Kruse Law Firm in Houston.

Sylvester is asking jurors to award him money for his mental anguish, impairment and medical expenses.

According to a news report in the Beaumont Enterprise, Sylvester's assailant, Rico Holland, was 19 years old when he shot Sylvester and was also up on chargers for shooting Curtis Everett in the ankle on May 22, 2004, when the two met after a confrontation earlier in the day.

"Holland already had been sentenced … to 20 years for shooting Jerry
Sylvester of Beaumont in the leg," the article states. "Sylvester later lost his leg from the knee down."

Neither the suit nor news report state why Holland shot Sylvester.

According to court documents, Holland appealed after he was handed the 20 year sentence, and on Oct. 10, 2006, justices seated on the Texas Ninth District Court of Appeals denied his request for a mistrial.

Case No. D177-259

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