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Vinson v. Lorentz10/27/2005
This is a medical malpractice case. Appellants, Rose Ann (Rose) and John Vinson (the Vinsons), challenge the trial court's dismissal with prejudice of their claims against appellee, Rick G. Lorentz, M.D., for noncompliance with former article 4590i, section 13.01(d) of the Medical Liability and Insurance Improvement Act, which required them to file an expert report within 180 days of filing suit. The Vinsons present two points of error. They first contend that they complied with section 13.01(d) of former article 4590i because, within the 180-day period, they identified two physicians as experts and also provided deposition testimony by those physicians that satisfied the necessary elements of the report requirement. The Vinsons alternatively claim that the trial court erred by denying the statutory grace period authorized by former article 4590i, section 13.01(g). See former Tex. Rev. Civ. Stat. Ann. art. 4590i, ยง 13.01(g). We affirm.
Factual Background and Procedural History
In August 1999, Richard Alford, M.D., performed a Nissen Fundoplication Anti-Reflux procedure (Nissen) on Rose. Lorentz was an associate of Alford and assisted in the surgery. Rose suffered complications after the surgery and eventually underwent a Nissen reversal surgery in February 2001. Lorentz, who had left Alford's practice by then, performed the Nissen reversal. During the surgery, Lorentz removed Rose's stomach.
The Vinsons initially sued Alford for medical malpractice arising from the 1999 Nissen surgery and had designated Lorentz as an expert witness who would testify that defects in Alford's surgery necessitated the Nissen reversal surgery. During the discovery process, depositions taken from Alford and Deborah Crumbaker, M.D., who conducted a postoperative pathology after the Nissen reversal, prompted the Vinsons to file suit against Lorentz on April 17, 2003. Their pleadings allege that Lorentz committed medical malpractice by severing Rose's right gastric artery during the Nissen reversal and that this malpractice resulted in his removing her entire stomach without her consent.
On February 24, 2004, almost 10 months after the Vinsons filed suit, Lorentz moved to dismiss their claims with prejudice pursuant to section 13.01(d) and (e) of former article 4590i, because the Vinsons had not filed the expert report required by the statute. Lorentz set the motion for a hearing on March 26, 2004. Three days later, by correspondence dated February 27, 2004, the Vinsons' counsel forwarded the complete depositions and curriculum vitae of Alford and Crumbaker, which he referred to as "reports/depositions" in "compliance with section 13.01 of former article 4590i." In the same letter, the Vinsons' counsel (1) stated his mistaken impression that copies of the depositions of Alford and Crumbaker were already in Lorentz's counsel's possession, (2) explained that he had not provided the copies earlier for that reason, and (3) asked whether Lorentz's counsel would consider passing the motion to dismiss.
Four days before the hearing on the motion to dismiss, on March 22, 2004, the Vinsons filed a formal response to the motion in which they argued that Lorentz was timely aware, through deposition testimony, notice from the Vinsons, telephone conferences with Lorentz's counsel, the Vinsons' response to Lorentz's motion to transfer venue, and a response to a Lorentz interrogatory, all of which occurred within 180 days of their filing suit, that the Vinsons would rely on Alford and Crumbaker concerning Lorentz's noncompliance with standards of care. The Vinsons alternatively requested a 30-day grace period to comply with the expert-report requirement, pursuant to section 13.01(g) of
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