Texas Supreme Court Denial Means Brain-Damaged Child Gets a Day in Court

Doctor’s Hospital at Renaissance, Ltd. v. Rebecca Lugo, Individually and a/n/f of Ingrid Banda, a Minor

On February 9, 2018, Ingrid Banda, a minor, had brain surgery performed at Doctor’s Hospital at Renaissance in Edinburg, Texas. Following the surgery, Ingrid had paralysis to the left side of her body and right-sided weakness. The doctor performing the surgery, Dr. Burke, determined later that the retractor “migrated and went into the brainstem.”  The brainstem is an area at the base of the brain that serves a critical role in regulating certain involuntary actions of the body. As a result, a medical malpractice lawsuit was filed allowing the migration to occur.

Medical Experts Opine the Brain Damage was Caused by Medical Negligence

In accordance with Chapter 74 of the Texas Civil Practice and Remedies Code–a Texas tort reform law requiring the injured victims to obtain expensive medical narrative reports and file them shortly after filing suit–the Plaintiff’s attorney obtained and filed narrative reports from two separate medical experts that opined that there were standards of care violated by the surgeon and the surgical tech that resulted in the migration, and; this migration into the brainstem was the cause of severe and permanent neurological impairment suffered by Ingrid Banda.

The Defense Try to Avoid Responsibility by Challenging Expert Reports

Shortly after the required medical reports were filed, the defense moved to challenge the reports as insufficient.  If a defendant is victorious in this challenge–which requires them to do nothing more than allege the reports are insufficient and then the injured victim must prove they are sufficient–then the case is dismissed and forever barred on a technicality.  After hearing the argument on the matter, the trial court denied the motion to dismiss and ruled that the innocent brain-damaged child should have her day in court.

The Defendants Appeal

Unfortunately, an appeal can be used as not only a second bite at the apple but also as a tactic to stall a plaintiff from getting their day in court for years. The defense then appealed to the 13th  Court of Appeals in Hildago County. On February 11, 2021, some three years after the lawsuit was filed, the Court of Appeals rendered an opinion denying the appeal.  In their opinion, they reminded the defense that the plaintiff does not have to prove their case in the report but needs to “inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to conclude that the claims have merit.”  In this case, the experts had limited the cause of the injury to three specific possibilities: ” (1) Dr. Burke contacted the retractor; (2) the surgical tech contacted the retractor; and (3) surgical equipment, under the control of Dr. Burke or a surgical tech.” Since all three possibilities amounted to medical malpractice, the report was clearly sufficient to give the defense notice of the basis of the claim.

Defense Take it To the Supreme Court

Even though the 13th Court of Appeals made it clear why the motion to dismiss had no merit, the defense saw fit to file a further appeal to the Texas Supreme Court. On August 6, 2021, the Texas Supreme Court Denied hearing the appeal–meaning that the lower Court’s opinion stands and the defense do not get to avoid litigation over wording in a report.

Texas Lose to Tort Reform

This case is significant because it demonstrates how unfair the current Texas tort reform law is to the victims.  This was a minor who had brain surgery. Even though the defense doctor acknowledged that the retractor had migrated into the brainstem when that should not happen, this case was drug out an extra three years over the defense trying to dismiss the case on a technicality.  This is why so many medical malpractice lawyers refuse to take cases in Texas now. Justice demands better than this and so should Texans. A vote against tort reform is a vote for Texan’s rights.

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