Law360 (April 8, 2019, 4:55 PM EDT) — A Fort Worth hospital has asked the Texas Supreme Court to dismiss claims it negligently served a patient soup that was so hot it burned her, arguing the patient’s counsel relied on unqualified expert witnesses.
Baylor All Saints Medical Center, which operates as Baylor Scott & White All Saints Medical Center-Fort Worth, filed a petition Friday asking the state’s high court to review lower court rulings that allowed the lawsuit to proceed. The negligence case was brought by Wanda Dexter on behalf of her late mother, Marla Jo Vorhies, who was a patient there in September 2015.
Baylor All Saints argued that the Second Court of Appeals could only have guessed that Dexter’s expert, board-certified plastic surgeon Dr. David M. Lavine, was qualified to offer an opinion on the standard of care nurses and staff should have followed in serving Vorhies the soup. The hospital says Lavine never spelled out his qualifications to opine on burn prevention.
“Nothing in his report or résumé explicitly states that Dr. Lavine has treated patients or worked with, supervised or trained nurses in the care at issue in this case, namely, the preparation and service of food prior to a patient sustaining a burn,” the hospital said. “Any other conclusion is an impermissible inference.”
Baylor All Saints also encouraged the court not to put weight in Lavine saying he maintained privileges at a Fort Worth hospital and had experience in caring for impaired patients in a hospital. Having admitting privileges as a doctor doesn’t mean he’s qualified to weigh in on how nurses or other hospital staff prepare or serve food like soup to patients, the hospital said.
“If the Second Court of Appeals allows the simple fact of being privileged at a hospital to automatically qualify a physician to provide adverse testimony against a nurse, this ruling would essentially qualify every physician to testify about every nurse and hospital in Texas,” it said in the petition.
The Second Court of Appeals, in allowing the suit to move forward, held that Lavine wasn’t required to demonstrate he was qualified to opine on the standard of care for serving hot liquids, because the “safe service of such liquids to impaired patients is common to all medical professionals.”
Darren Wolf of Law Office of Darren Wolf PC, who represents Dexter, said he doesn’t think the Texas Supreme Court will hear the case. He explained his client was seriously injured by the hot soup that essentially “boiled her skin off her body.”
“Baylor Scott & White wants to make everything into some specialized nonsense so basically they can hurt their patients and get away with it,” he said. “They’re taking a simple, common-knowledge concept and trying to make it into something unique to the medical field.”
Counsel for Baylor All Saints did not immediately return a message seeking comment Monday.
According to court documents, Dexter filed suit in September 2017, alleging her mother received negligent care after she was admitted for treatment of “poor health.” She says the hospital lost her mother’s dentures, relegating her to a liquid diet. When staff served her cold soup one day, she asked it be reheated.
When the soup was brought back, Dexter says it was “boiling hot,” and her mother dropped it onto her lap — burning her waist and thighs — after trying to sip it. Vorhies died three days later from unrelated issues, and Dexter does not claim the soup burns contributed to her death.
Baylor All Saints objected to Dexter’s first expert report, authored by food and regulatory scientist Dr. Catherine Adams Hutt, saying her report and resume didn’t indicate she’d ever practiced health care or worked in a health care setting, so she wasn’t qualified to offer an opinion on what the nursing staff should have done.
The trial court agreed and granted Dexter a 30-day extension to fix them.
Dexter then filed an amended report from Hutt and an additional report from Lavine. The hospital made similar objections to Lavine’s report, arguing he was also unqualified to offer an opinion on the standard of care.
Baylor Scott & White is represented by David K. Speed and Brian C. Brisco of Cantey Hanger LLP.
Dexter is represented by Darren Wolf and Christianne Edlund of Law Office of Darren Wolf PC.
The case is Baylor All Saints Medical Center d/b/a Baylor Scott & White All Saints Medical Center-Fort Worth v. Dexter et al., case number 19-0287, in the Texas Supreme Court.
–Editing by Adam LoBelia.