Trial News

A woman’s claim that a hospital’s nurses and physical therapist provided negligent care following her hip replacement may proceed, a Texas appellate court has held. It ruled that her expert report satisfies the Texas Medical Liability Act’s (TMLA) initial suit-filing requirements. Although nurses and physical therapists cannot make medical diagnoses, the court said, the expert report connected their failure to update physicians on the plaintiff’s medical status to her post-surgical complications. The decision clarifies when medical negligence claims are available against hospitals in Texas. (Tomball Tex. Hosp. Co. LLC v. Bobinger, 2019 WL 3801664 (Tex. App. Aug. 13, 2019).)

On May 11, 2015, La Neta Bobinger underwent hip replacement surgery performed by Michael Blackwell at Tomball Regional Medical Center. Radiologist Voon Ping Liaw reviewed Bobinger’s post-operative X-rays and confirmed her hip showed “satisfactory alignment without fracture.” The hospital’s orthopedic nurses and a physical therapist cared for her post-surgery. Although their notes document Bobinger’s higher-than-normal pain rating and failure to meet ambulation goals, she was discharged only two days after surgery.

Bobinger was readmitted to Tomball on May 19 with increasing swelling and pain at the surgical site. Doctors diagnosed a fractured proximal femur and performed another surgery. A month later, Bobinger was admitted to a different hospital and diagnosed with a prosthetic joint and hardware infection, a failed arthroplasty, and a greater trochanteric femoral fracture. There, she underwent a revision surgery to treat her fractures and drain and debride her wound.

Bobinger sued Tomball, Blackwell, Liaw, and Houston Northwest Radiology Association in Texas state court. Bobinger alleged that Tomball’s nurses and physical therapist were negligent. Under the TMLA, a “sufficient” expert report must be filed within 120 days of a defendant’s answer. Failure to do so may result in dismissal of the medical negligence suit.

The plaintiff timely served an expert report on the hospital that specified the “applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed,” as required under the TMLA (§74.351).

Tomball moved to dismiss, arguing the expert report was insufficient. The trial court concluded that the report was sufficient to survive the TMLA’s initial filing requirements because it detailed how the nurses and physical therapist failed to inform Blackwell of Bobinger’s “persistent pain” and “her inability to progress in physical therapy” before her discharge. The court found the report adequately explained the applicable standards of care for nurses and physical therapists, how those standards were violated at Tomball, and how the violations caused Bobinger’s post-surgical complications. Tomball appealed, arguing that the report failed to “show a meritorious claim against the hospital” and “erroneously impute[d] to the nurses and physical therapists a duty to foresee and diagnose Bobinger’s injuries, tasks that, by law, belong exclusively to physicians.”

The appellate court looked at whether the expert report qualified as a “good-faith effort to provide a fair summary of the expert’s opinions.” The report is a “good-faith effort,” the court said, if it “informs the defendant of the specific conduct called into question” and “provides a basis for the trial court to conclude that the claims have merit.” Here, the appellate court said, the trial court had been reasonable in finding that the expert report adequately identified the hospital’s orthopedic floor nurses’ and physical therapist’s duty to “inform the . . . orthopedist before the patient’s discharge whether a patient has significant post-operative pain” or “significant out of proportion pain” as well as their breach of that duty.

The court then examined whether the expert report identified a causal relationship between the breach and Bobinger’s injuries. It rejected the defendant’s characterization of the report as requiring nurses and physical therapists to make medical diagnoses and foresee Bobinger’s hip fractures and infection, holding that the report identified a causal relationship. The report did not attempt to link the delay in diagnoses of Bobinger’s post-operative complications to negligent nurse and physical therapist care, the court explained, Rather, it linked her allegedly inappropriate discharge to the hospital staff’s failure to relay to treating physicians their concerns with her recovery as well as their instructions to Bobinger to continue weight-bearing exercises at home. Because orthopedic surgeons rely on nurses’ and physical therapists’ reports of a patient’s progress and any post-operative difficulties, the court found that “the failure to report was a substantial factor in bringing about Bobinger’s improper discharge,” and showed that the nurses’ and physical therapist’s acts and omissions could have proximately caused her post-operative complications.

“The trial judge said our expert report was sufficient, and now the Texas Court of Appeals has agreed with us,” said Houston attorney Stephen Boutros, who represented the plaintiff. “The hospital’s lawyers attempted to abuse the system and delay justice with this frivolous appeal. Hopefully, we can get back to the business of seeking justice for Ms. Bobinger, who was hurt by people she trusted to care for her almost four years ago.”