 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Eisner v. Bentch8/10/2005
Sitting: Karen Angelini, Justice, Sandee Bryan Marion, Justice and Phylis J. Speedlin, Justice
AFFIRMED
Appellant Marie Eisner appeals from the trial court's dismissal of her medical malpractice action against Appellee Dr. H. Leonard Bentch. Finding no error, we affirm the judgment of the trial court.
Background
The underlying medical malpractice action arose from the care and treatment rendered by Appellee Dr. Bentch, a gastroenterologist, to Garnett Eisner, Appellant Marie Eisner's late husband. At the time Garnett Eisner was treated by Dr. Bentch, Eisner was seventy-seven years of age and had cardiac problems. Garnett Eisner had an artificial valve in his heart and took Coumadin, an anticoagulant, to prevent clots from forming around the artificial valve. In accordance with the guidelines from the American College of Gastroenterology ("ACGE") and in preparation for a colonoscopy, Dr. Bentch instructed Garnett Eisner to stop taking Coumadin.
On February 22, 2001, Dr. Bentch performed a colonoscopy with polypectomy on Garnett Eisner. During the procedure, Garnett Eisner experienced a cardiac arrhythmia, or atrial flutter. However, Garnett Eisner tolerated the procedure well and was sent home. Dr. Bentch instructed him to begin taking Coumadin five days after the surgery. On February 25, 2001, Garnett Eisner suffered a stroke which eventually led to his death.
Garnett Eisner's wife, Marie Eisner, sued Dr. Bentch for medical malpractice, alleging that her husband had been negligently classified as a low-risk patient when he was actually a high-risk one. According to Marie Eisner, when her husband had an atrial flutter during the procedure, Dr. Bentch should have reclassified Garnett Eisner as a high-risk patient and ordered that he take Heparin, an anticoagulant. Marie Eisner retained two experts: Dr. Sutton, a gastroenterologist, and Dr. Schapira, a cardiologist. During his deposition, Dr. Sutton testified that he was not aware of any literature to support the theory that a patient should be reclassified when he had an atrial flutter during a procedure. And, Dr. Sutton testified that he had not performed a polypectomy when a patient had had an atrial flutter. Dr. Schapira, a cardiologist, testified during his deposition that he had never performed a colonoscopy or polypectomy, and he did not know of any literature to support Eisner's theory.
Dr. Bentch filed a motion to exclude and/or limit expert testimony of the two doctors. At a hearing on the Friday before trial was to begin, the trial court heard and granted Dr. Bentch's motion to exclude. Both parties then noted that as a result of the motion being granted, Eisner would not have sufficient evidence to prove her case at trial. Neither party wished to expend money or waste judicial resources when Eisner could clearly not prove her case without the testimony of her expert witnesses. Thus, on agreement by both parties, Eisner was allowed to present an oral motion for continuance, and Dr. Bentch was allowed to present an oral motion to dismiss. The trial court denied Eisner's motion for continuance and granted Dr. Bentch's motion to dismiss. On appeal, Eisner is no longer represented by counsel and has filed a pro se brief.
Discussion
In her pro se brief, Marie Eisner argues that the trial court erroneously denied her a right to trial by jury. However, after Dr. Bentch's motion to exclude Eisner's experts was granted, Eisner's attorney, recognizing the futility of proceeding to trial without any expert testimony, agreed to allow Dr. Bentch to present an oral motion to dismiss so long as he was also allowed to present an oral motion for
Page 1 2 3 4 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|