Justices approve medical report questioned for second time

By David Yates | Nov 9, 2010

After another round of amendments and changes, Beaumont appellate justice have approved the medical expert reports in a malpractice suit against several doctors and area hospitals.

For the second time, the Ninth District Court of Appeals was tapped to decide whether or not Ivalyn and Lee Anderson's medical expert reports meet Texas Civil Code requirements, ruling on Nov. 4 that the trial court did not err by approving the reports.

In November 2008 the Andersons, an Orange couple, filed suit against eight doctors and three hospitals, alleging Ivalyn suffered from a stroke after doctors inserted a central line into her veins.

A year later, several of the defendants appealed after Judge Gary Sanderson, 60th District Court, refused to toss the case on the grounds that the Andersons' medical expert reports failed to fulfill code requirements, court records show.

The defendants named in the suit include Dr. Samuel J. Pangburn, Dr. Charles S. Day, Dr. Nestor Cagol Punay, the Julie and Ben Rogers Cancer Institute, Memorial Hermann Baptist Beaumont Hospital and Memorial Hermann Baptist Orange Hospital.

As the Southeast Texas Record previously reported, on Dec. 17, 2009, Ninth District justices affirmed one of the expert reports and reversed and remanded the remaining reports.

In order to comply with the ruling, on May 7 the Andersons submitted an amended report from expert Dr. Joel Meyer and also submitted a new report from expert Dr. Allen Rubenstein, court papers show.

Once again, Dr. Nestor Cagol Punay objected to the report, filing a motion to dismiss. On May 20 Judge Sanderson denied his motion, leading Dr. Punay to appeal.

On appeal, Dr. Punay contended that "the trial court abused its discretion in denying (his) second motion to dismiss because the plaintiffs' amended and new expert reports do not meet the statutory of Texas ... civil law," his appeal brief states.

In his brief, Dr. Punay claims Dr. Rubenstein's report fails to adequately address causation and Dr. Meyer's amended report fails to detail the standard of care for a neurologist, such as Dr. Punay.

Justices did not agree.

"The reports read together assert that Punay should have recognized the 'early areas of infarction' from ... an MR scan, and then should have ordered a workup to determine the cause," writes Justice David Gaultney in the court's opinion.

"The trial court could reasonably conclude that the reports represent a good faith effort to inform the defendant of the specific conduct the plaintiff calls into question and provide a basis for the trial court to determine whether the claims have merit. Appellant's issue is overruled. The trial court's order is affirmed."

Case history

Court records show that Ivalyn, age 69 at the time of the incident, had a subcutaneous central venous access device put in her veins while receiving chemotherapy treatments.

During her treatment, which occurred between Aug. 16 and Sept. 21, 2006, Ivalyn suffered a stroke and a traumatic rupture of her subclavian artery, causing severe injuries to her brain and heart, court papers say.

In their suit, the couple alleges the injuries were due to the forceful misplacement of the subcutaneous central venous access device in her heart, repetitive failure to diagnose misplacement of the device and continuous subsequent use of the misplaced venous device.

In order to substantiate their claims, the Andersons submitted the expert reports of Drs. Louis Silverman and Meyer.

Several of the defendants objected to the validity of the expert reports and filed a motion to dismiss, arguing that neither doctor was qualified to testify on Ivalyn's brain condition.

On March 27, 2009, Judge Sanderson denied the motion, prompting the first appeal.

The Andersons are seeking unspecified damages, plus prejudgment interest at the maximum rate, post-judgment interest at the legal rate, costs and other relief the court deems just.

Attorney Brett S. Thomas of the Beaumont firm Roebuck Thomas Roebuck & Adams is representing them.

Dr. Punay is represented by Houston attorney Erin Lunceford of the Sprott, Rigby, Newsom, Robbins & Lunceford law firm.

Jefferson County Case No. B182-642
Appeals Court Case Nos. 09-09-00169-CV and 09-10-00289-CV

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