A lawsuit faulting two local hospitals for a 70-year-old woman's death will continue, as appellate justices recently ruled that it's too soon for a judge to "look beyond the four corners of (a plaintiff's) expert report."
This was the second time on the same case justices seated on the Texas Ninth Court of Appeals were tasked to decide if Judge Donald Floyd abused his discretion after denying a defense objection to the qualifications of a medical expert.
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 alleges Christus Hospital St. Mary, Dubuis Hospital of Port Arthur and Dr. Sreedhar Polavarapu were negligent when they failed to strap his wife to the hospital bed, a precaution which the plaintiff claimed would have prevented Dorothy from knocking out her breathing tube.
Required by Texas Civil law to substantiate his claim, Broussard and his attorneys submitted the expert opinion of Dr. Jon D. Peters, a Virginia neurologist, who wrote that each of the defendants breached the applicable standard of care by failing to "adequately restrain and monitor Mrs. Broussard."
Christus and Dubuis jointly objected to what they claimed was 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 to dismiss stated.
Nonetheless, on Jan. 17, 2008, Judge Floyd, 172nd District, found that the defense motions lacked merit, and denied the motion to dismiss and the objection to Dr. Peters' expert testimony - leading the defendants to appeal his decision.
Appellate judges for Ninth District court in Beaumont, however, did not agree with Floyd, issuing an opinion on Sept. 11, 2008, ruling that the report was "deficient."
In response to the higher court's ruling, Judge Floyd allowed the plaintiffs to amend their expert report. And, again, the defendants filed a motion to dismiss, asserting the amended report was still vague and deficient.
And, again, Floyd denied their motion, leading the defendants to appeal for a second time.
However, this time justices ruled in favor of Floyd, releasing an opinion on Thursday, Feb. 25, which affirmed the judge's ruling.
"Christus ... and Dubuis challenge the trial court's order denying their second motion to dismiss healthcare liability claims," writes Justice David Gaultney.
"Because at this stage of the lawsuit the motion would require the trial court to look beyond the four corners of the expert report to determine fact issues; the challenge raised in this interlocutory appeal does not support a reversal of the trial court's order. We affirm the order denying the motion."
On appeal, the hospitals argued that the trial court abused its discretion when denying the motion to dismiss because the plaintiff's "amended expert report does not meet the statutory requirements of Texas Civil Practice & Remedy Code section 74.351."
Court papers show that 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 suit says. "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 allege that it was the defendants' alleged failure to safely monitor and restrain Dorothy Broussard that led to the deprivation of oxygen and caused her death.
Broussard's troubles started 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.
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 Nos. 09-08-00044-CV and 09-09-00083
Trial Court Case No. E179-564