Christus seeks summary judgment after mistrial

By David Yates | Nov 11, 2009

In September, the Southeast Texas Record reported on a mistrial in a medical malpractice case against Christus Health Southeast Texas over a child's electrical burns.

However, rather than wait for round two, Christus is fighting for summary judgment, arguing that neither the plaintiffs nor their expert can provide any evidence of Christus negligence.

According to the original complaint, when she was only 17 months old Shelby Bradley received electrical burns on her forearms while in the care of personnel at Christus Hospital St. Elizabeth.

The trial of Rachelle Kelly vs. Christus Health was slated to begin in Judge Gary Sanderson's 60th District Court on Tuesday, Sept. 8, but the case ended in a mistrial before it could get underway.

A hearing for summary judgment was held Nov. 4. Judge Sanderson said he has taken the defendant's motion under consideration.

During the hearing, Christus argued that the plaintiffs have no expert to testify on the hospital's alleged breach of the standard of care � a requirement under Texas Civil Code.

Conversly, the plaintiffs contend that no expert testimony is necessary due to the legal doctrine of res ipsa loquitur, Latin for "the thing itself speaks."

Res ipsa loquitur is a common law theory which allows the plaintiff to use circumstantial evidence to meet the burden of proof in negligence cases on the elements of duty and breach.

Case history

Concerned about her daughter's slow growth and poor motor skills, Rachelle Kelly brought Shelby to Chistus St. Elizabeth in Beaumont on March 31, 2004, court papers say. While there the girl underwent a sweat chloride test.

The sweat chloride test, or sweat test, is a common procedure used to evaluate a patient who is suspected of having cystic fibrosis.

Cystic fibrosis is often clinically suspected when there is poor growth during infancy.

According to court documents, Christus technician Judy McGee "failed to place electrode gel on Shelby's skin prior to placing electrodes onto her body and conducting the test."

"As a result, during the test Shelby suffered excruciating pain and ... suffered first and second degree burns to her forearms," court papers say.

During her deposition, McGee testified that the pilogel disc, which fits snugly into the recess of the electrode to prevent burns, fell out.

"This was nothing but human error," McGee said in her deposition. "It was an accident."

The plaintiffs are seeking damages for Shelby's medical expenses and pain and suffering.

They are represented by attorney Kip Lamb of the Lamb Law Firm.

The defense is represented in part by Erin Lunceford, attorney for the Sprott, Rigby, Newsom, Robbins and Lunceford law firm.

Case No. B177-153

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