 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Langley v. Jernigan3/2/2005
MEMORANDUM Opinion AFTER REMAND
This medical malpractice case is on remand from the Texas Supreme Court. Appellant, Marie Langley sued Providence Health Center and a group of doctors, including Appellee Floyd E. Jernigan, after the death of her husband, John Langley. The trial court dismissed her claims against Dr. Jernigan under former article 4590i and severed the claims from those against all other defendants.
Langley brought this appeal, asserting in four issues why her claims should not have been dismissed: (1) Dr. Jernigan waited too long to file his motion to dismiss; (2) the expert report she filed was a "fair summary" of the expert's opinions; (3) the burden of showing a lack of good faith rested with Dr. Jernigan and he did not meet that burden; and (4) the court erroneously refused to allow her time to supplement the reports. We held that by waiting for over 600 days Dr. Jernigan waived his right to object to the report. Langley v. Jernigan, 76 S.W.3d 752, 758 (Tex. App.--Waco 2002), rev'd, 111 S.W.3d 153 (Tex. 2003). Thus, we reversed the judgment and remanded the cause for trial. Id. The Supreme Court disagreed with our decision about waiver, reversed our judgment, and remanded the case to us "for further proceedings." Jernigan v. Langley, 111 S.W.3d 153, 158 (Tex. 2003). We now consider Langley's issues two, three, and four.
We will sustain Langley's issues two and three, reverse the dismissal, and remand for further proceedings. Alternatively, we will also sustain issue four, reverse the dismissal, render judgment that Langley is entitled to an extension of time to file a supplemental report, and remand for further proceedings.
JOHN'S DEATH
Early on October 6, 1996, because he was experiencing stomach pain, Marie took John to the emergency room at Providence Hospital. An abdominal x-ray was performed, and John was discharged with a diagnosis of fecal impaction. He was given a gallon of Golytely to drink at home and told to return in the evening. John and Marie returned less than two hours later; John was in acute pain. He was admitted to the hospital under the care of Dr. John Jones, a medical resident who was under the supervision of Dr. Jernigan, the attending physician. John's condition worsened during the afternoon. Early in the evening, gastroenterology and surgical consults were ordered. Later that night, surgery was performed, and a second operation was performed the next day, October 7. John died on October 8, forty-nine hours after he first went to Providence.
THE REPORTS, THE MOTION, THE HEARING
Approximately forty-five days after filing suit, Marie filed two expert reports--one by Dr. Charles McKhann, a surgeon, and Dr. Albert Weihl, an emergency-room and family doctor; the other by Dr. Howard Spiro, a gastroenterologist. A curriculum vitae for each expert was also filed. Prior to her claims being dismissed, she filed a supplemental report by Dr. McKhann.
Dr. Jernigan's motion to dismiss asserted that Langley's expert reports did not meet the specificity requirements of former article 4590i. Langley's response, in addition to asserting untimeliness, asserted that the reports were adequate and alternatively asked the trial court to consider Dr. McKhann's supplemental report.
On July 28, 2000, the trial court held a hearing, granted Dr. Jernigan's motion to dismiss, and signed the order dismissing and severing Langley's claims. At the hearing, Dr. Jernigan's counsel argued, "We're here because they failed to meet the requirements of what the report must contain. . . ." At the conclusion of the hearing, the trial judge acknowledged that he was dismissing because of the "i
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|