Appeals court affirms trial court's ruling, OKs expert report

On Feb. 12 justices on the Texas Ninth District Court of Appeals affirmed a lower court's ruling denying a defendant's motion to dismiss a medical malpractice suit on grounds that the plaintiff's expert report was deficient.

Two years ago, Thomas Dearbonne, filed a wrongful death suit in Jefferson County on behalf of Betty Dearbonne, who was 71 years old at the time of her death, against Dr. Susan Kay Craig and Mid County Family Physicians Associates.

In his suit, Dearbonne said that Betty was admitted to Mid-Jefferson Hospital on Jan. 25, 2005, after visiting the emergency room with complaints of difficulty breathing, pleuritic pain, fever, and chills.

According to the suit and appeals opinion, Dr. Craig noted at that time that Betty had been suffering from a respiratory infection and experiencing shortness of breath for several weeks. Dr. Craig diagnosed Betty with right-sided pneumonia.

The petition further alleged that Betty's condition deteriorated after she was admitted to the hospital, and that a cardiologist subsequently diagnosed her with arterial occlusion and Acute Respiratory Distress Syndrome. She died on Feb. 2, 2005.

In their answer to Dearbonne's suit, the defendants maintained that Betty died from illness "over which defendants had no control and � constitutes what is known in law as 'an act of God.'"

To substantiate his claims, the plaintiff filed an expert report by Dr. Lige B. Rushing Jr. � a requirement under the Texas Civil Practices Code.

In turn, on Aug. 27, 2007, Dr. Craig and MCFPA filed a motion to dismiss the suit on the grounds that the plaintiff's expert was not qualified to render an opinion and that his findings were "speculative" and "conclusory."

Judge Bob Wortham of the 58th District Court, who is presiding over the litigation, denied the motion, leading the defendants to appeal his decision.

In June 2008, Beaumont justices reversed Judge Wortham's ruling and remanded the case back to the lower court for consideration of whether to permit a 30-day extension to cure deficiencies in the report, court papers say.

Court documents show that once a mandate was issued, Judge Wortham granted the extension, and in response the plaintiff presented a supplemental report.

Last fall, the defendants filed a second motion to dismiss. When Judge Wortham denied the motion, Dr. Craig and MCFPA repeated history and appealed, arguing once again that the trial court erred in allowing the deficient report.

On appeal, the defendants "maintain the trial court abused its discretion in finding that there is a sufficient factual basis for Dr. Rushing's causation opinion that, but for the alleged negligence of Dr. Craig, Betty would have received certain treatments from pulmonology and cardiology specialists that would have identified the cause of her medical complications and prevented her death," states an opinion authored by Justice David Gaultney

In his initial report, Dr. Rushing opined "that the most likely sequence of events in this case based on reasonable medical probability is that Betty actually died from pneumonia, congestive heart failure, sepsis and adult respiratory distress syndrome," the opinion states.

In his supplemental report, Dr. Rushing provided an explanation as to what treatment would have prevented Betty's death and how the failure of Dr. Craig to provide proper treatment, in reasonable medical probability, was a cause of Betty's death.

"Dr. Rushing's report provides a fair summary of his opinions, as of the date of the report, on the applicable standards of care, the manner in which the care rendered by appellants failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed," the opinion states.

"The trial court did not abuse its discretion in finding the expert qualified to express the opinions explained in the report. We affirm the trial court's order denying appellants' motion to dismiss."

The plaintiff is represented in part by attorney Jacqueline Ryall of the Sheldon, Dunham & Edwardson law firm.

The defendants are represented in part by attorney Gary Sommer.

Trial case No. A178-682
Appeals case No. 09-07-00587-CV