Baylor doctor denied motion to dismiss patient's negligence suit over tumor

By Elizabeth Alt | May 22, 2018

HOUSTON – The Court of Appeals for the 1st District of Texas denied a doctor’s motion to reverse a trial court decision May 15 in a case filed by a man who alleged he was subjected to unnecessary surgery.

Justice Russell Lloyd wrote the opinion, with Justices Michael Massengale and Jennifer Caughey concurring on the panel.

Lloyd stated that “(Jason) Bahn’s expert report meets the statutory requirements” in affirming the trial court’s decision to deny the defendants’ motion to dismiss the suit against them.

Jason Bahn filed suit against Dr. Daniel Albo and Baylor College of Medicine, also known as Park Plaza Clinic, on behalf of himself and a minor citing medical negligence.

According to the appellate court's opinion, in 2014 after complaining of pain in his right arm, testing on Bahn discovered a large mass, brachial plexopathy and muscle deviation on his right arm and core. Bahn was referred to Albo, an oncologist surgeon, when a benign spindle cell lesion was found.

Albo noted in his surgical report that he removed the mass and dissected the right lymph nodes since the benign spindle cell lesions could indicate cancer. Several months later, Bahn went to M.D. Anderson Cancer Center, which performed an MRI and a biopsy and determined that Bahn had a desmoid tumor and needed radiation, the opinion states.

Bahn sued Albo and Baylor for negligence, claiming that the surgery was unnecessary and caused him more harm and that Bahn’s tumor was misdiagnosed due to Albo’s negligence. The trial court denied the defendants’ motion to dismiss, and they appealed.

Albo and Baylor claim that Bahn’s medical expert gave conflicting reports, such as whether Bahn’s pre-existing injuries affected the surgery, and that the expert, Dr. Charles Goldman, did not allege any specific breach of conduct or negligence against Albo.

Goldman stated in his expert opinion that Albo dissecting all three right lymph nodes “resulted in neurological and motor injuries, thus worsening Mr. Bahn’s condition, including an increase in the loss of range of motion in Mr. Bahn’s right arm, and an inability to lift his arm off of his chest wall to 90 degrees,” the opinion states.

The appellate court affirmed the trial court decision to deny to motion to dismiss, noting “Dr. Goldman has identified a specific breach of the applicable standard of care…To the extent that Dr. Goldman’s report is internally inconsistent or contradictory, the trial court was within its discretion to resolve any such inconsistencies.”

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