Spitzer v. Berry (Published): The doctor complained to the trial court that, though a report was filed on time, it didn’t give him fair notice of the malpractice case against him. The trial court denied the doctor’s motion to dismiss. The court of appeals affirmed that denial. The report complied with the statute.
Here’s the gist of the expert report of a board certified general and thoracic surgeon: Tommy Berry had a colonostomy reversal and hernia repair at ETMC Athens. Because of his pre-existing respiratory problems (chronic obstructive pulmonary disease) Berry needed steroids. But steroids can impair the body’s immune system. Berry needed his immune system to be going full-blast to ward off any post-operative infections. Not surprisingly, infections are a particular concern following colon surgery. Berry was put on an antibiotic regimen, but his doctor then allowed him to go off of antibiotics for four days. That’s all it took for an infection to set in. By the time antibiotics were resumed, it was too late. The infection overwhelmed Mr. Berry — he gave it his all until, like John Henry, his heart gave out.
Now for a direct quote from the report: “[the] hiatus in antibiotic therapy allowed development and progression of the infections that led to irreversible sepsis and death. Had his antibiotic therapy been maintained . . . , the lethal infections would not have developed and his death secondary to overwhelming sepsis not occurred.”
Having read that, can you figure out the alleged malpractice?
So could the Tyler court.
Update: Dr. Spitzer filed a petition for review in the Texas Supreme Court on April 7, 2008.