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Bakker v. Reynolds7/30/2001
Justice Rosenberg
This is a medical malpractice case in which Jens Bakker alleged that unreasonable delays in diagnosis and surgery caused him damages. In four points of error, Bakker appeals the summary judgment granted in favor of Ferman Reynolds, M.D., EmCare, Inc. d/b/a EmCare Physician Staffing Services, and Mason Holden, M.D. Because we conclude that Bakker failed to establish the qualifications of his expert on the standard of care, we further conclude there is no evidence raising a fact issue on Bakker's claims against Holden. Therefore, we affirm the summary judgment granted in Holden's favor. Because we conclude, first, there is evidence sufficient to create a fact issue regarding proximate cause and, second, the absence of evidence of pain and suffering damages does not negate all damages and does not support the dismissal of the suit, we reverse the summary judgment granted in favor of Reynolds and EmCare and remand Bakker's causes of action against those parties for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 1995, at approximately 7:30 p.m., Bakker had an acute and sudden onset of pain in his lower abdomen and vomiting. At approximately 8:00 p.m., he went to the emergency room at Doctor's Hospital in Dallas. He was examined by a nurse and one of the emergency room physicians, Dr. Ferman Reynolds. After the initial exam, Reynolds ordered a CT scan of Bakker's head and abdomen. Before the results of the scan were obtained, Bakker's mother, a physician, asked that the doctor re-examine Bakker's scrotum. On re-examination, Reynolds found that Bakker's right testicle was swollen. Based on the two examinations and the results of the CT scan, Reynolds believed that Bakker's problems were urological, and at 11:30 p.m. that same evening, he called Dr. Mason Holden, a urologist.
Holden arrived at the hospital a little after midnight. He examined Bakker, started him on antibiotics, and ordered a scrotal ultrasound and nuclear medicine scan to check the viability of the right testicle. Holden admitted Bakker to the hospital. Based on his diagnosis of Bakker's condition as epididymitis, he did not plan any type of emergency surgery at that time.
The scan was performed around 8:00 or 9:00 a.m. the next morning. After reviewing the results of the scan, Holden scheduled Bakker for exploratory scrotal surgery for the same day. The exploratory surgery revealed an incarcerated and strangulated right inguinal hernia with sixteen inches of small bowel trapped in the scrotum. Due to the nature and the severity of the hernia, Dr. Charles Iliya, a general surgeon, was called to assist Holden. Iliya preformed an abdominal incision to remove the dead bowel and reattach the healthy bowel.
Bakker filed suit against Reynolds, Holden, Doctor's Hospital, and EmCare. Bakker alleged that Reynolds was negligent in failing to timely and accurately diagnose Bakker's incarcerated hernia, properly examine Bakker's complaints, and order the proper tests. Bakker alleged that Holden was negligent in failing to timely and accurately diagnose Bakker's condition, promptly order tests, and timely commence surgery and timely obtain a surgical consultation. EmCare and Doctor's Hospital were included as defendants under the theory of respondeat superior. Bakker claimed that he lost sixteen inches of his small bowel as a result of the delayed diagnosis and treatment. He claimed that if there had been a timely diagnosis and surgery, the surgery would have been a simple hernia repair without the need for bowel resectioning. Bakker asserted that the resectioning put him at risk of abdominal adhesions, future episodes of intestinal obstruction
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