The Ninth Court of Appeals has found that an expert report failed to provide enough of a correlation between cause and injury to sustain a medical malpractice lawsuit against Christus Hospital – St. Mary.
On behalf of her newborn, Ezra Dorsey, Annie Dorsey filed suit against Christus and Leslie McDonald Lovelace in Jefferson County District Court.
According to the petition, Ezra and her twin brother were born prematurely on Aug. 14, 2010. Ezra was then admitted to the neonatal intensive care unit at Christus.
On Sept. 13, 2010, Ezra suffered a skull fracture after she was dropped or pulled to the floor by Lovelace, a Christus registered nurse who was responsible for taking care of the infant.
Court records show Christus transferred Ezra to UTMB hospital in
Galveston “for an expert evaluation by a neurosurgeon and a neurologist based upon the request of Ezra’s family.”
Dorsey claims that neurosurgeon Dr. Aaron Mohanty evaluated Ezra a few months after her fall, and explained that the fall caused Ezra’s skull fracture, the skull fracture caused “significant trauma” to Ezra, and the skull fracture had not yet healed, according to the Ninth Court’s Oct. 15 opinion.
Dorsey further contended that in October of 2011, pediatric neurosurgeon Dr. Timothy George of Dell Children’s Medical Center of Central Texas evaluated Ezra and issued an expert report, in which he attributed the skull fracture to Ezra’s fall, noted that Ezra was hyperactive, and recommended a follow-up visit with a developmental pediatrician.
Dorsey asserted that J. Walter Bordages, Ph.D., performed developmental tests on Ezra and prepared a neuropsychological evaluation report, in which he opined that Ezra’s evaluation “supported his diagnoses of a neurocognitive disorder due to traumatic brain injury with behavioral disturbance as a result of the skull fracture,” according to the opinion.
Dorsey contended that Bordages’s conclusions were confirmed by Dr. Jerry Tomasovic, who, according to Dorsey, testified by deposition that the skull fracture resulted in a traumatic brain injury to Ezra, and that Christus and
Lovelace breached the applicable standard of care, based upon a reasonable medical probability.
In response, Christus and Lovelace successfully moved for summary judgment, asserting Tomasovic, who is Dorsey’s “only retained expert qualified to opine as to causation” had “testified that he could not opine within a reasonable degree of medical probability that Ezra Dorsey suffered any underlying brain injury as a result of Defendants’ actions,” leaving Dorsey “unable to provide any reliable expert testimony that Ezra Dorsey’s neurological injuries, if any, were causally related to Defendants’ alleged negligence,” according to the opinion.
Christus and Lovelace further argued that because Dorsey is unable to provide evidence of causation, Dorsey failed prove that any future lost wages or medical costs are attributable to the alleged negligence of them.
The Ninth Court found that since Tomasovic himself testified that he could not “connect the dots” between the skull fracture and Ezra’s alleged neurological injury, his testimony does not produce more than a scintilla of evidence of causation, leading justices to affirm Christus’ summary judgment win.
Christus is represented by Norton Rose Fulbright attorneys Randall Richardson, Warren Huang and Patrick McMillin.
Dorsey is represented by Austin attorney Ronnie Jones.
Trial case No. D193-144
Appeals case No. March 2, 2010141-CV