News

Fort Worth Court of Appeals Affirms Summary Judgment in Favor of Client in Medical Malpractice Case

The Second Court of Appeals at Fort Worth, Texas affirmed summary judgment in favor of a general surgeon represented by the firm in a medical malpractice wrongful death case. The Plaintiffs accused our client of malpractice in recommending the transfer of the patient to a higher level of care facility qualified to treat complications of recent bariatric surgery. Our client never met, interacted with, treated, diagnosed, nor spoke with the patient or any member of the patient’s family. Our client’s sole involvement was serving as the on-call general surgeon for the hospital’s ER Department.

The patient had recently undergone a bariatric procedure and visited the emergency department before being sent home. While at home, the patient collapsed and returned to the hospital. The patient’s treating physician phoned our client, who recommended transfer. The patient was careflighted to another hospital with bariatric surgeons on staff but unfortunately passed away following additional surgery.

We obtained summary judgment in the 348th District Court based on the lack of a physician-patient relationship. In the trial court and on appeal, Plaintiffs argued that our client had a physician-patient relationship and also argued that they had alleged alternative negligence claims that did not require a physician-patient relationship.

The Fort Worth Court of Appeals agreed with our position and held that there was no physician-patient relationship under these circumstances and that the “alternative” claims alleged by Plaintiffs still required a breach of the applicable standard of care for health care providers—necessitating a physician-patient relationship.

We are grateful to our client for entrusting us with her defense and her confidence in seeing this result through after several years of litigating the meritless claims against her.

Our client was represented in the trial court by partner Kenneth Patterson and associates Andrew J. Upton and Megan P. Pharis. In the court of appeals, our client was represented by partner Kevin J. Keith and Andrew J. Upton.

The case is Plummer v. Frano, No. 02-23-00426-CV, 2024 WL 4293384 (Tex. App. Sept. 26, 2024).