McKowen v. Ragston

263 S.W.3d 157, 2007 Tex. App. LEXIS 245, 2007 WL 79330
CourtCourt of Appeals of Texas
DecidedJanuary 11, 2007
Docket01-06-00665-CV
StatusPublished
Cited by40 cases

This text of 263 S.W.3d 157 (McKowen v. Ragston) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKowen v. Ragston, 263 S.W.3d 157, 2007 Tex. App. LEXIS 245, 2007 WL 79330 (Tex. Ct. App. 2007).

Opinion

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Robert McKowen, M.D., files this interlocutory appeal from the trial court’s denial of his motion to dismiss a medical malpractice lawsuit brought by ap-pellees, Mitchell Ragston, Sr., and Mitchell Ragston, Jr., in their individual capacities and on behalf of the estate of Golden Rag-ston, deceased. 1 In two issues, appellant contends that the trial court erred (1) by overruling his objections to the qualifications of appellees’ expert witness and (2) by denying his motion to dismiss appellees’ claim for failure to file a sufficient expert report, as required by section 74.351 of the Texas Civil Practice and Remedies Code. 2

We affirm.

Background

Golden Ragston was a 74-year-old woman in the end stages of renal disease. On March 27, 2003, Ragston saw appellant, a cardiothoracic surgeon, concerning placement of a permanent arteriovenous access graft (“AV graft”) for hemodialysis. On June 6, 2003, Ragston was admitted to West Houston Medical Center (“WHMC”) for acute dialysis treatment. On June 9, 2003, appellant placed the AV graft in Ragston’s arm.

Following surgery, Ragston suffered complications with healing, including swelling, tenderness, and necrosis. Appellant prescribed antibiotics and discharged Ragston to Triumph Hospital of Southwest Houston (“Triumph”). Ragston was not under appellant’s care at Triumph.

On July 2, 2003, appellant readmitted Ragston to WHMC to address increased swelling in Ragston’s arm. The AV graft was identified as the source of the infection, and appellant prescribed an additional course of antibiotics. On July 31, 2003, appellant again admitted Ragston to WHMC and surgically removed a seroma from her arm. On August 14, 2003, appellant replaced Ragston’s Quinton catheter at WHMC.

*159 On September 6, 2003, Ragston was admitted to Memorial Hermann Southwest Hospital. Blood cultures indicated that Ragston was infected with vancomycin-resistant enterococci (“VRE”). After an infectious disease consultation, it was recommended that the AV graft be removed. On September 15, 2003, appellant removed a portion of the graft, leaving a cuff of foreign material in place in Ragston’s arm. On September 16, 2003, Ragston was transferred back to Triumph. On October 17, 2003, Ragston died from sepsis.

Appellees brought medical malpractice claims against appellant in their individual capacities (under the Wrongful Death Statute 3 ) and on behalf of Ragston’s estate (under the Survival Statute 4 ), alleging that appellant was negligent in failing to provide proper and ordinary care to Ragston, “failing to properly administer to the graft site,” and “failing to properly monitor [Ragston] after diagnosis of infection.” 5 To support their claims, appellees filed the expert report of Carl M. Berkowitz, M.D., as required by section 74.351 of the Texas Civil Practice and Remedies Code. See id

In his curriculum vitae, Dr. Berkowitz listed that he is a graduate of the University of Massachusetts medical school, he has been licensed to practice since 1986, has been engaged in the full-time practice of medicine in the area of infectious diseases since 1988, and is certified by the American Board of Internal Medicine, with a subspecialty in infectious diseases. In addition, Dr. Berkowitz has been a partner in Infectious Disease Consultants of San Antonio since 1993; has been the medical director of Infectious Diseases Consultants Infusion Center of San Antonio since 1997; has served as Chief of Staff at Southwest Texas Medical Hospital; and has served as Chairman of the Quality Improvement Committee of the Methodist Healthcare System. Further, Dr. Berkowitz has authored published works on infectious diseases.

In his affidavit, Dr. Berkowitz attested as follows: “I have treated many patients with the type of infection suffered by Ms. Golden Ragston, specifically, infections of arteriovenous access grafts. In addition, I have cared for many infections caused by Vancomycin Resistant Enterococci (VRE). As such, I am aware of the standards of care that exist related to these infections.” Dr. Berkowitz articulated the applicable standard of care to be as follows:

When inserting an intravascular foreign body, the consequences of infection are extremely serious. Thus, it is incumbent upon the surgeon to make every attempt to make sure there is no infection at the time of surgery. This includes a review of symptoms, temperature, laboratory, and a thorough physical examination. Any suggestion of an infection should result in postponing the procedure. It was apparent shortly after the insertion of the AV graft that an infection was present. It is generally accepted that an infected foreign body can not be treated with antibiotics in order to achieve cure. The only way to eradicate an infected foreign body is to remove it. This needs to be done timely and completely. If timeliness is not achieved, bacteremia will result. If the entire device is not removed, a nidus of infection will remain, allowing the infection to persist_In the setting of persistent bacteremia, an aggressive search *160 for a removable source of infection must be made, and any potential source must be removed.

Dr. Berkowitz attested that appellant breached this standard of care as follows, in pertinent part:

[Tjhere was evidence suggestive of infection at the time the device was placed. Unless there was an emergent need for the AV graft, she should not have had it placed until she was afebrile, and had no evidence of infection while not receiving antibiotics. Once it was apparent that the graft was continuing to show evidence of infection each time antibiotics were stopped, the device should have been removed. It should have been removed in its entirety at the time of surgery on 9/15/03. When it became apparent that Ms. Ragston was still bacteremic despite the partial removal, the remainder of the graft should have immediately been removed. The failure to remove the graft at that time was a violation of the standard of care.

Dr. Berkowitz attested to causation, as follows:

Ms. Golden Ragston underwent the placement of an AV graft at [a] time when she showed evidence of a systemic infection. Through this, or some other mechanism, her graft became infected. The failure to appropriately treat this infection led to the development of intractable bacteremia with a progressively more resistant organism. This caused the demise of Ms. Ragston. Had a peritoneal catheter been placed, instead of the AV graft, or had the AV graft been removed in a timely and appropriate manner, it is my opinion that she would not have developed the infection that caused her demise. The continuing course of treatment by Dr. McKowen violated the standard of care and caused the death of Ms. Ragston.

Appellant objected that the report was deficient on the ground that Dr. Berkow-itz, an infectious disease specialist, was not qualified to serve as an expert against appellant, a cardiothoracic surgeon.

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Cite This Page — Counsel Stack

Bluebook (online)
263 S.W.3d 157, 2007 Tex. App. LEXIS 245, 2007 WL 79330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckowen-v-ragston-texapp-2007.