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Darryn L. Myers v. Darla Kruse
Date: 05-03-2012
Case Number: 09-11-00722-CV
Judge: David Gaultney
Court: Texas Court of Appeals, Ninth District on appeal from the 260th District Court, Orange County
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Darryn L. Myers and Derrick M. Myers appeal from the trial court"s order denying their motion to dismiss a health care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (West Supp. 2011); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2011). Darla Kruse was injured after a plate shattered while she was preparing a snack. According to the plaintiff"s expert"s report, Kruse was treated by emergency physician, Darryn Myers, M.D., at the emergency department at Memorial Hermann Baptist Orange Hospital. Kruse had lacerations to her left index and middle fingers. Darryn Myers performed a digital block, sutured the wound, and applied a splint.
Left index and middle finger x-rays were negative. He warned Kruse of "possible injury to index finger flexor tendon†and prescribed her Keflex and Motrin. He advised her to return in "7-10 days for suture removal.†Kruse returned to the emergency department for follow-up. This time she was treated by Derrick Myers, M.D., also an emergency physician. The medical records indicate Kruse complained of "difficulty and painful range of motion of left hand digits[,]†and she indicated there was limited range of motion. Derrick Myers observed no tendon injury and discharged her after he removed the sutures. Kruse was asked to follow up with an orthopedic surgeon in five days. Kruse saw a physician who found that her tendons were not working properly and she was referred to a specialist. The specialist diagnosed Kruse with a complex laceration of the left index finger, a transsection of the left index radial digital nerve, and a simple laceration of the left middle finger. The specialist"s prognosis was that "given the amount of time since the injury, I suspect a primary nerve repair will not likely be possible.â€
Kruse sued Darryn Myers and Derrick Myers. Kruse alleged that their treatment of her caused her to suffer loss of use of the index and middle fingers of her left hand. Kruse served the defendants with an expert report. The defendants filed objections and a motion to dismiss. They argued the report failed to meet the statutory requirements of section 74.351. The trial court overruled the objections and denied the motion. Appellants contend the trial court abused its discretion.
When considering a motion to dismiss for failure to comply with section 74.351, the trial court must determine "whether „the report" represents a good-faith effort to comply with the statutory definition of an expert report.†See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The report need not marshal all of the plaintiff"s proof. Palacios, 46 S.W.3d at 878; see also Wright, 79 S.W.3d at 52. In reviewing the trial court"s decision, an appellate court considers whether the trial court could reasonably determine that the report represents a good-faith effort to inform the defendants of the specific conduct the plaintiff calls into question and to provide a sufficient basis for the trial court to determine the claims have merit. See Palacios, 46 S.W.3d at 875, 879. Appellants argue the report fails to adequately explain the standard of care, any alleged breach, and the causal connection between any alleged breach by the defendants and any injury to Kruse. They specifically argue that the specialist"s statement, relied on in the expert report, is conclusory. Appellants assert the report"s conclusions as to causation are not supported by the facts. They complain that the report fails to explain how any delay in treatment, diagnosis, or referral was a substantial factor in causing any injury to Kruse, and that the report fails to explain what treatment Kruse needed but did not receive because of lack of a timely referral.
In his report, plaintiff"s expert asserts that Darryn Myers failed to comply with the standards of medical care by failing to adequately document a proper tendon examination and failing to refer Kruse to a specialist for further evaluation of a possible tendon injury. The report points out that Darryn Myers did not properly document tendon function and did not state what findings led him to his conclusion that there was possible injury to the index finger flexor tendon. The report explains that, as a result of the notation suggesting Darryn Myers suspected a flexor tendon injury of the index finger, the standard of care would require a referral to a hand specialist. The report stated that the failure to timely refer her to a hand specialist led to the delay in the correct diagnosis and the subsequent disability of her left index finger.
The report also states that Derrick Myers failed to comply with the standards of medical care by failing to recognize the abnormal tendon functions (documented by the triage nurse), by performing an inaccurate physical examination whereby he concluded there was no tendon injury, and by failing to expeditiously refer her to a hand specialist. The report states that the standard of care would have required an immediate referral to a hand specialist. The plaintiff"s expert asserts that the failure to timely refer her to a hand specialist led to the delay in the correct diagnosis and the subsequent disability of her left index finger.
The trial court did not abuse its discretion in denying the motion to dismiss. The report indicates the failure to promptly refer Kruse to a hand specialist resulted in the inability of the hand specialist to adequately treat the injury. The trial court could reasonably conclude that the report represents a good-faith effort to inform the defendants of the specific conduct the plaintiff calls into question, and to provide a sufficient basis for the trial court to evaluate whether the claim should proceed. See Wright, 79 S.W.3d at 52-54; Palacios, 46 S.W.3d at 878-80; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Appellants" issue is overruled. The trial court"s order is affirmed.
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See: http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=12382
Left index and middle finger x-rays were negative. He warned Kruse of "possible injury to index finger flexor tendon†and prescribed her Keflex and Motrin. He advised her to return in "7-10 days for suture removal.†Kruse returned to the emergency department for follow-up. This time she was treated by Derrick Myers, M.D., also an emergency physician. The medical records indicate Kruse complained of "difficulty and painful range of motion of left hand digits[,]†and she indicated there was limited range of motion. Derrick Myers observed no tendon injury and discharged her after he removed the sutures. Kruse was asked to follow up with an orthopedic surgeon in five days. Kruse saw a physician who found that her tendons were not working properly and she was referred to a specialist. The specialist diagnosed Kruse with a complex laceration of the left index finger, a transsection of the left index radial digital nerve, and a simple laceration of the left middle finger. The specialist"s prognosis was that "given the amount of time since the injury, I suspect a primary nerve repair will not likely be possible.â€
Kruse sued Darryn Myers and Derrick Myers. Kruse alleged that their treatment of her caused her to suffer loss of use of the index and middle fingers of her left hand. Kruse served the defendants with an expert report. The defendants filed objections and a motion to dismiss. They argued the report failed to meet the statutory requirements of section 74.351. The trial court overruled the objections and denied the motion. Appellants contend the trial court abused its discretion.
When considering a motion to dismiss for failure to comply with section 74.351, the trial court must determine "whether „the report" represents a good-faith effort to comply with the statutory definition of an expert report.†See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (l); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). The report need not marshal all of the plaintiff"s proof. Palacios, 46 S.W.3d at 878; see also Wright, 79 S.W.3d at 52. In reviewing the trial court"s decision, an appellate court considers whether the trial court could reasonably determine that the report represents a good-faith effort to inform the defendants of the specific conduct the plaintiff calls into question and to provide a sufficient basis for the trial court to determine the claims have merit. See Palacios, 46 S.W.3d at 875, 879. Appellants argue the report fails to adequately explain the standard of care, any alleged breach, and the causal connection between any alleged breach by the defendants and any injury to Kruse. They specifically argue that the specialist"s statement, relied on in the expert report, is conclusory. Appellants assert the report"s conclusions as to causation are not supported by the facts. They complain that the report fails to explain how any delay in treatment, diagnosis, or referral was a substantial factor in causing any injury to Kruse, and that the report fails to explain what treatment Kruse needed but did not receive because of lack of a timely referral.
In his report, plaintiff"s expert asserts that Darryn Myers failed to comply with the standards of medical care by failing to adequately document a proper tendon examination and failing to refer Kruse to a specialist for further evaluation of a possible tendon injury. The report points out that Darryn Myers did not properly document tendon function and did not state what findings led him to his conclusion that there was possible injury to the index finger flexor tendon. The report explains that, as a result of the notation suggesting Darryn Myers suspected a flexor tendon injury of the index finger, the standard of care would require a referral to a hand specialist. The report stated that the failure to timely refer her to a hand specialist led to the delay in the correct diagnosis and the subsequent disability of her left index finger.
The report also states that Derrick Myers failed to comply with the standards of medical care by failing to recognize the abnormal tendon functions (documented by the triage nurse), by performing an inaccurate physical examination whereby he concluded there was no tendon injury, and by failing to expeditiously refer her to a hand specialist. The report states that the standard of care would have required an immediate referral to a hand specialist. The plaintiff"s expert asserts that the failure to timely refer her to a hand specialist led to the delay in the correct diagnosis and the subsequent disability of her left index finger.
The trial court did not abuse its discretion in denying the motion to dismiss. The report indicates the failure to promptly refer Kruse to a hand specialist resulted in the inability of the hand specialist to adequately treat the injury. The trial court could reasonably conclude that the report represents a good-faith effort to inform the defendants of the specific conduct the plaintiff calls into question, and to provide a sufficient basis for the trial court to evaluate whether the claim should proceed. See Wright, 79 S.W.3d at 52-54; Palacios, 46 S.W.3d at 878-80; see also Tex. Civ. Prac. & Rem. Code Ann. § 74.351. Appellants" issue is overruled. The trial court"s order is affirmed.
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See: http://www.9thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=12382
Outcome:
AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of Darryn L. Myers v. Darla Kruse?
The outcome was: AFFIRMED.
Which court heard Darryn L. Myers v. Darla Kruse?
This case was heard in Texas Court of Appeals, Ninth District on appeal from the 260th District Court, Orange County, TX. The presiding judge was David Gaultney.
When was Darryn L. Myers v. Darla Kruse decided?
This case was decided on May 3, 2012.