Take-nothing judgment entered in suit alleging injury lifting 300-pound patient

By David Yates | Aug 31, 2016

BEAUMONT – An agreed take-nothing judgment has been entered in a suit between Beaumont Home Health Service and a Port Arthur woman, who alleges she was negligently instructed to lift a 300-pound patient.

Seeking 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.

On June 13, Judge Kent Walston, 58th District Court, denied BHHS’ motion to dismiss, court records show.

A notice of appeal followed eight days later.

On Aug. 24 the Ninth Court of Appeals issued an opinion granting a joint motion to dismiss the accelerated appeal.

Prior to the high court ruling, the parties had entered an agreed take-nothing judgment on Aug. 8, court records show.

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

She was 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, represented her.

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

Case No. A-197796

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