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Hospital supplied recalled battery for spine simulator surgery, appellate court clears way for case to proceed

Hospital claimed plaintiff's case was frivolous

As a Houston, Texas medical malpractice attorney, I’ve heard all kinds of healthcare defendant excuses and arguments over why they think cases are frivolous or should be thrown out right out of the gate. But just when I thought I’d heard it all, a new case out of the Tyler Court of Appeals proved me wrong.

The case is styled Bennie Grismore v. Texas Spine & Joint Hospital, Ltd., No. 1-18-0017-CV, In the 12th Court of Appeals, Tyler, Texas. You can read the opinion here.

After a foot injury, the patient, named Bennie, had surgery at East Texas Medical Center for placement of a Medtronic spinal cord stimulator. Years later, he had surgery at Texas Spine & Joint Hospital to replace the spine stimulator’s battery. After the second surgery, Bennie experienced and complained of pain, spasms, and shocks, along with several high blood pressure readings.

Bennie had no idea, when he went to Texas Spine & Joint Hospital, that Medtronic had previously recalled both the spine stimulator that had been implanted, as well as the exact battery type that was used in his second surgery. He ended up requiring another surgery to remove the Medtronic spinal cord stimulator and battery, to have it replaced with a different unit and battery.

Bennie filed a medical malpractice lawsuit against Texas Spine & Joint Hospital and Medtronic. In the lawsuit petition, the he alleges that the hospital was negligent by stocking the recalled Medtronic battery after it had been recalled and by allowing it to be implanted in him during his surgery.

I think that sounds pretty straightforward and reasonable, don’t you agree?

The hospital took advantage of the special procedural rules granted to healthcare defendants under Texas law. Texas Civil Practice & Remedies Code Section 74.351 requires a medical malpractice plaintiff to produce a written expert report detailing the claims within 120 days of the defendant filing an official answer in a lawsuit. Once the expert report is produced, the defendant has 21 days to file objections to the report. That’s exactly what happened in this case.

In short, the hospital argued that Bennie’s case against it was frivolous and should be dismissed. I have to admit, this is the first time I’ve heard an argument from a hospital that stocking and supplying a recalled device or battery for a surgery isn’t negligent.

The Tyler Court of Appeals rejected the hospital’s argument. The court noted that this isn’t a typical or traditional healthcare liability claim against the hospital, but rather concerns a quality-control claim as to whether there was an adequate policy in place to ensure that the recalled medical device wouldn’t be surgically implanted into a patient.

The hospital challenged the qualifications of the Harvard-trained medical expert, a general medicine physician, to offer an opinion concerning appropriate hospital procedures for storing and using implantation devices. The court ruled that the plaintiff’s expert was qualified to render an opinion because of his licensure as a medical physician and service for many years as chief of general medicine at a VA hospital.

It seems like the appellate court recognized the absurdity of even needing a medical expert under the circumstances, even though it’s required by Texas law. The court opinion said, “It is axiomatic that a hospital should remove recalled medical devices from its inventory and not allow the surgical implantation of a recalled medical device in patients at its facility; thus, it is reasonable to conclude that this concept is both common to all fields of practice and within the common sense of a layperson.”

Similarly, the appellate court appeared frustrated with the hospital’s challenge. The opinion noted that, “The purpose of the expert report in healthcare liability claim is to expose frivolous lawsuits and obtain early dismissals. . . . That a recalled medical device was surgically implanted into a patient is not a frivolous accusation. And we do not anticipate that anyone would argue the surgical implantation of the recalled Medtronic battery into [the plaintiff] was acceptable or should have occurred….”

Lobbyists for hospitals and physicians like to talk about the litigation expenses caused by frivolous medical malpractice lawsuits. I’ve yet to hear them say a word, though, about their fondness for frivolous objections that add unnecessary expense to medical negligence cases.

If you’ve been seriously injured because of a hospital or physician error, hire a top-rated, experienced Houston, Texas medical malpractice to investigate your case. Lawyers with significant direct experience in representing clients in medical malpractice matters understand what’s required to successfully pursue these complicated cases.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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