DANIEL L. ALBO, M.D., PH.D. AND BAYLOR COLLEGE OF MEDICINE A/K/A PARK PLAZA CLINIC, Appellants
JASON M. BAHN, INDIVIDUALLY AND AS NEXT FRIEND FOR A.J.B., A MINOR, Appellee
Appeal from the 129th District Court Harris County, Texas
Trial Court Case No. 2016-24596
consists of Justices Massengale, Lloyd, and Caughey.
Russell Lloyd, Justice
an interlocutory appeal from the trial court's denial of
appellants Daniel L. Albo, M.D., Ph.D. and Baylor College of
Medicine a/k/a Park Plaza Clinic's motion to dismiss the
healthcare liability claims filed against them by appellees
Jason M. Bahn, individually and as next friend for A.J.B., a
minor. In their first two issues, appellants argue that the
trial court abused its discretion by denying their motion to
dismiss because: (1) Bahn's expert report failed to link
Bahn's damages to a specific breach of an applicable
standard of care by Dr. Albo, and (2) Bahn's expert (a)
is not qualified to opine as to Baylor's corporate
status, or Dr. Albo's relationship with Baylor, and (b)
applied the wrong standard of care to Baylor. In their third
issue, appellants argue that because the trial court abused
its discretion by denying their motion, we should reverse the
trial court's order, render judgment dismissing
Bahn's healthcare liability claims with prejudice, and
remand to the trial court for a determination of
appellants' reasonable attorney's fees and costs.
Because Bahn's expert report meets the statutory
requirements, we affirm the trial court's order denying
appellants' motion to dismiss.
affirm the trial court's order.
medical records are not before us, and we accept the factual
statements in Bahn's expert report, prepared by Dr.
Charles Goldman, for the limited purpose of this
experiencing pain in his right shoulder for several years,
Bahn consulted a physician in early 2014 complaining of
persistent and increasing right arm pain. Bahn underwent
several tests and procedures, including an EMG which showed
mild to moderate right brachial plexopathy and mild deviation
in his posterior core muscle on the right. An MRI performed
on Bahn's right shoulder and brachial plexus on February
10, 2014 showed a "fairly large heterogeneous mass
present within the high right axilla, abutting and
intercalating with the brachial plexus." Bahn also
underwent a CT scan on February 28, 2014, and a percutaneous
core biopsy which showed a "benign spindle cell
was referred to Dr. Albo, a general surgeon and surgeon
oncologist. On March 24, 2014, Bahn underwent "a right
axillary radical lymph node dissection and excision of right
axillary mass" that was performed by Dr. Albo. Dr. Albo
was assisted by a vascular surgeon and a physician assistant.
During surgery, Dr. Albo took a sample of one of Bahn's
lymph nodes, excised the axillary mass, and sent the
specimens to the pathology department. Dr. Albo's
operative findings indicate that because Bahn's February
28, 2014 biopsy showed "benign spindle cell lesion,
" the potential for cancer had to be considered and
"[c]onsequently, Level III lymph node dissection was
completed due to the possibility of this being a metastatic
melanoma . . . ." According to Dr. Goldman's report,
"Bahn had persistent motor deficit preexisting prior to
the operation with inability to elevate the right arm past
the shoulder level and proximal shoulder muscle
weakness." Upon waking from surgery, "[t]here were
no new muscle deficits, no new motor sensory deficits in the
upper extremity, and Mr. Bahn flexed and extended his right
arm and used all of his fingers unencumbered."
August 5, 2014, an MRI performed on Bahn's chest
"showed an enhancing mass . . . corresponding to the
apical axillary mass seen on the preoperative imaging."
September 2, 2014, Bahn went to M.D. Anderson Cancer Center
where he underwent a series of tests, including an additional
core needle biopsy of the mass in his right lymph node area
to determine its pathology. This core biopsy showed that the
right axillary mass was aggressive fibromatosis, or a desmoid
tumor. On October 10, 2014, Bahn's doctors at M.D.
Anderson determined that radiation was the best treatment
course for Bahn's tumor.
filed medical negligence suits against Dr. Albo and Baylor,
as well as other defendants who are not parties to this
appeal, alleging that the surgery was unnecessary and caused
injury to Bahn. After Bahn timely served appellants with a
supplemental expert report prepared by Dr. Charles Goldman,
appellants served objections to this expert report and filed
a motion to dismiss Bahn's healthcare liability claims
hearing, the trial court denied appellants' motion to
dismiss and this interlocutory appeal followed.