Hospital Can’t Escape Suit Over Surgery With Recalled Laser

The ruling from the First Court of Appeals in Houston paves the way for Aviv and Ela Barr to proceed with the lawsuit against Texas Children’s Hospital over alleged neurological injuries caused to the couple’s minor daughter after she underwent what’s described as a minimally invasive surgery to treat epilepsy.

The couple alleges that when Dr. Daniel Curry performed the surgery in July 2018, he used a NeuroBlate — an MRI-guided laser tool — that had been recalled by the U.S. Food and Drug Administration in October 2017. The parents say the device caused permanent brain damage to their child, identified in court filings as M.B. The NeuroBlate was recalled because of unexpected heating that could damage brain tissue.

A three-judge panel determined that Harris County District Judge Scot Dollinger got it right in January when he determined the expert report authored by Dr. Anthony Avellino, a neurosurgeon, connected the dots between the alleged breach of the standard of care and the injuries suffered by the Barrs’ daughter.

“Because Dr. Avellino explained how the alleged negligent conduct — TCH’s providing a recalled device with which it allowed Dr. Curry to perform M.B.’s surgery — caused the damage to the blood vessel in M.B.’s brain that resulted in the remainder of her injuries, we cannot conclude that the trial court abused its discretion in determining that the expert report satisfied the [Texas Medical Liability Act]’s requirement to provide ‘the causal relationship between the failure and the injury.'”

According to the opinion, the Barrs’ daughter was discharged from the hospital July 22, 2018, and began experiencing dizziness, vomiting and loss of consciousness. Eighteen days later, she was admitted to a different hospital and underwent additional surgery after doctors there determined she suffered a “ruptured pseudoaneurysm,” or brain bleed.

According to court documents, the couple filed suit in February 2019. Avellino explained in his report that the device at issue was subject to what’s called a “Class I recall,” meaning it could cause death or serious injury because of the unintended heating of the laser probe.

Texas Children’s argued the report was “conclusory” and “impermissibly vague” and failed to link his conclusion that the laser probe overheated to the facts of the case. The hospital also argued that in Curry’s operative report he never stated that the probe overheated.

The appellate panel wrote that Texas Children’s was missing the mark with that argument because all that’s required at this point in the litigation is that Avellino’s report makes a “good-faith effort to explain, factually, how proximate cause is going to be proven.”

“The fact that Dr. Curry’s operative report does not expressly state that the laser probe overheated does not render Dr. Avellino’s conclusions insufficient,” the panel said.

Anna Greenberg of Blizzard Greenberg PLLC, representing the Barrs, said she was hopeful when the appellate court declined a request from Texas Children’s to hear oral arguments in the suit that it was a good sign for her clients.

“We’re really excited to finally clear this bar and felt it was pretty obvious from the beginning that this is anything but a frivolous lawsuit,” she said. “Now we can start pushing it forward.”

Counsel for Texas Children’s Hospital did not immediately return a message seeking comment Thursday.

Justices Richard Hightower, Terry Adams and Sherry Radack sat on the panel for the First Court of Appeals.

Texas Children’s Hospital is represented by Kevin Yankowsky, Jaqualine McMillan and Christopher Conatser of Norton Rose Fulbright.

Aviv and Ela Barr are represented by Edward F. Blizzard and Anna Greenberg of Blizzard Greenberg PLLC.