Southeast Texas Record

Wednesday, February 19, 2020

Motion to dismiss filed in plaintiff’s suit alleging injury lifting 300-pound patient

By David Yates | Jun 1, 2016

Law money 06

Beaumont Home Health Service recently filed a motion to dismiss a suit brought by a Port Arthur woman, who alleges she was negligently instructed to lift a 300-pound patient.

Seeing up to $500,000 in damages, Debra Fox filed her suit against BHHS on Nov. 12 in Jefferson County District Court.

On May 17 BHHS filed a motion to dismiss, asserting Fox has “wholly” failed to provide an expert report within the allotted time, court records show.

Texas’ civil code requires plaintiffs to provide an expert report within 120 days of bringing a medical malpractice claim.

On May 27 Fox filed a response arguing she is filing a liability claim, not a med-mal claim. 

The Texas Supreme Court has found personal injury claims against health care providers can still fall under the scope of med-mal claims. 

According to the original petition, on April 21, 2014, while employed by BHHS, Fox was injured while lifting a patient at the patient’s home.

The patient weighed more than 300 pounds and the lift was broken, the suit states.

“Fox was told by her employer (BHHS) … that she still needed to lift the patient and (the defendant) did not send anyone to assist her,” the suit states.

Fox contends BHHS knew or should have known that the condition of the lift created an unreasonable risk of harm.

She is suing for her past and future pain, mental anguish, lost earnings, impairment and medical expenses.

Tom Oxford, attorney for the Beaumont law firm Waldman Smallwood, represents her.

BHHS is represented by David Smith, attorney for the Houston law firm Eggleston & Briscoe.

Judge Kent Walston, 58th District Court, has been assigned to the case.

Case No. A-197796

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