The Texas Supreme Court recently denied review of the Fort Worth Court of Appeals’ decision affirming 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 transfer of the patient to a higher level of care facility qualified to treat complication 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.

After the Fort Worth Court of Appeal’s decision, the Plaintiffs sought review at the Texas Supreme Court, arguing that the Court of Appeals wrongly applied the principles of longstanding Supreme Court jurisprudence. In denying review, the Supreme Court refused to expand thirty years of precedent as to the definition of a physician-patient relationship and brought this case to a close.

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 partners Kenneth Patterson and Andrew J. Upton and associate Megan P. Pharis. In the Court of Appeals and Supreme Court, our client was represented by partners Kevin J. Keith and Andrew J. Upton.

The Court of Appeals opinion is Plummer v. Frano, No. 02-23-00426-CV, 2024 WL 4293384 (Tex. App.—Fort Worth Sept. 26, 2024). The Supreme Court case is No. 24-0948.