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Albo v. Bahn

Court of Appeals of Texas, First District

May 15, 2018

DANIEL L. ALBO, M.D., PH.D. AND BAYLOR COLLEGE OF MEDICINE A/K/A PARK PLAZA CLINIC, Appellants
v.
JASON M. BAHN, INDIVIDUALLY AND AS NEXT FRIEND FOR A.J.B., A MINOR, Appellee

          On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2016-24596

          Panel consists of Justices Massengale, Lloyd, and Caughey.

          MEMORANDUM OPINION

          Russell Lloyd, Justice

         This is 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.

         We affirm the trial court's order.

         Background

         The 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 appeal.[1]

         After 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 lesion."

         Bahn 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."

         On 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."

         On 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.

         Bahn 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[2] prepared by Dr. Charles Goldman, appellants served objections to this expert report and filed a motion to dismiss Bahn's healthcare liability claims against them.

         After a hearing, the trial court denied appellants' motion to dismiss and this interlocutory appeal followed.

         Chapter 74 ...


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