Despite a hospital claiming a patient didn’t properly provide an expert report in her health-care liability lawsuit, the Court of Appeals for the First District of Texas affirmed a lower court’s denial to dismiss the lawsuit against the health-care facility on August 13.
La Neta Bobinger had a hip replacement at Tomball Texas Hospital Company LLC (doing business as Tomball Regional Medical Center). But she sued after she suffered multiple complications that resulted in revision surgeries.
She provided an expert report that said the physicians and the hospital did not live up to the expected standard of care that Bobinger was owed. But the hospital filed a motion to dismiss the expert report, stating that it didn’t properly speak on the applicable standards of care, breach and causation.
The lower court denied the motion, and the appeals court agreed.
It said that any professional, from a physical therapist to a therapist who sees that a patient has post-surgery issues like swelling and hasn’t progressed at a healthy rate, should not let the patient go home without evaluating her.
“We hold that the trial court acted within its discretion in concluding that the reports sufficiently identify applicable standards of care,” said the appeals court.
It then addressed that the expert’s claim that there was a breach in care “is conclusory and thus renders the report inadequate,” according to the lawsuit.
The hospital said it acknowledged Bobinger’s slow progress in medical records, so there was no breach. But the appeals court said that documenting is not enough. Texas nursing laws state that health professionals also have to report the slow progress in a timely manner.
As for the hospital’s claim that the report doesn’t detail how its alleged conduct caused Bobinger’s further injuries, the appeals court said Arredondo did his part in showing foreseeability as it connects the physical therapist and nurses to discharging her too early. It said the hospital also proved cause in fact as it explained that after seeing Bobinger’s lack of progress, it would have helped to give Bobinger another set of x-rays before it discharged her to go home.
The appeals court denied the hospital’s motion to dismiss. Justice Gordon Goodman wrote the opinion, and Justice Julie Countiss concurred, but Chief Justice Sherry Radack dissented.
Radack said Arredondo’s report doesn’t properly prove causation. “Nothing in the expert report states or explains how, under the circumstances in existence at the time of the alleged delay, nurses and physical therapists ‘of ordinary intelligence would have anticipated danger,’” according to the dissenting opinion.
Dr. Michael Blackwell said was all well with the surgery, and Bobinger stayed in the hospital for two days to recover. Her radiologist was Dr. Voon Ping Liaw. Both physicians said her hip was showing suitable recovery.
Bobinger’s expert, Dr. Cecil Rene Arredondo, said her recovery wasn’t that quick. Arredondo said Bobinger could hardly walk on her own and had swelling during her stay between May 11, 2015, and May 13, 2015. She was readmitted May 19 for a proximal fractured femur and had revision surgery.
She returned to the hospital June 9 with a prosthetic-joint-and-hardware infection. She was taken to St. Joseph Medical Center and diagnosed with a failed arthroplasty and greater trochanteric femoral fracture. On June 14, she had revision surgery again.
Bobinger sued the hospital, Blackwell, Liaw, Tomball and Houston Northwest Radiology Association, stating that they were negligent in supplying her medication that could have prevented her further issues. Her lawsuit accompanied a report from Arredondo, which stated that Blackwell and Liaw’s conduct “was below the standard of care and more likely than not the basis of the proximate cause of (Bobinger’s) complicated post-operative course,” according to the lawsuit.
The hospital said the report made “blanket criticisms” against the entire staff, failing to point out the difference among physicians, therapy care and nursing. The trial court denied the hospital’s motion to dismiss the expert report, and the hospital subsequently filed the appeal.