Oral arg. – COA – Oct. 21, 2015

At 10:00 a.m., the COA will hear the case of Carol Gray v. Eric Graham, M.D. and Michelle Graham, N.P., a med mal case that  was dismissed on summary judgment after the trial court held that the affidavit of the plaintiff’s expert was conclusory. 

After Carol Gray suffered a second thoaracic fracture within 4 months, she had it repaired by orthopedic surgeon Dr. Eric Graham on May 13, 2009.  During surgery, Dr. Graham took a biopsy.  The report documenting the May 13, 2009, biopsy results stated the following: “Numerous plasma cells are present within the marrow space, consistent with plasmacytoma/ multiple myeloma. Recommend serum and urine protein electrophoresis. Please correlate with clinical and radiographic findings.”  While the report was faxed to the Grahams’ office, the Grahams claim they did not become aware of the letter until they received a pre-suit notice from plaintiff.  Gray ended up being diagnosed with multiple myeloma in June of 2010.  She sued Dr. Graham and his wife, a nurse practitioner, arguing that if the Grays had diagnosed her in 2009, she could have avoided the numerous vertebra fractures she suffered after they treated her.

The Grahams moved for summary judgment.  The plaintiff supplied affidavits from an expert nurse and doctor.  The doctor opined that ‘[b]ecause Gray achieved partial remission and suffered no additional fractures once she began chemotherapy at M.D. Anderson, Dr. Avery opined to a reasonable degree of medical certainty that had Gray discovered her diagnosis shortly after the May 13, 2009, biopsy and initiated treatment shortly thereafter, most if not all, of the additional fractures discovered during June and July of 2010 would, more likely than not, have been avoided.”

The trial court granted summary judgment. “Because the Affidavit of Bruce Avery only makes a boilerplate conclusory opinion, which was given with no real facts to back it up, and with no specific facts nor medical analysis as to how or why the delay in an unspecified type of treatment caused the additional fractures, the Court finds that Plaintiff has failed to establish medical causation.”

Gray  brief

Grahams’ brief

Gray rebuttal 

Watch the argument here.

3 thoughts on “Oral arg. – COA – Oct. 21, 2015

  1. I guess when a doctor says something now (like Gray’s expert physician did in his affidavit) that his “opinion is to a reasonable degree of medical certainty,” this means nothing, since per the COA this only a “boilerplate conclusory opinion”????

    WTF???

  2. sorry, my bad. not enough coffee this am – it was the affidavit in opposition to motion for summary judgment that the TC ruled was “boilerplate,” correct?

    On Wed, Oct 21, 2015 at 9:13 AM, Joseph Blackston wrote:

    > I guess when a doctor says something now (like Gray’s expert physician did > in his affidavit) that his “opinion is to a reasonable degree of medical > certainty,” this means nothing, since per the COA this only a “boilerplate > conclusory opinion”???? > > WTF??? > > On Wed, Oct 21, 2015 at 9:08 AM, Jane’s Law Blog <

  3. The plaintiff’s expert was a Dr. Avery and his opinion is supported by the plaintiff’s actual experience. Her lawyer states during argument that Ms. Gray is in partial remission and suffered no additional fractures once she started treatment at M.D. Anderson. It’s certainly not conclusory like you get in some premises cases where some ex cop says that if the apartment complex had a guard, the plaintiff would not have been shot. Justice Irving keeps pointing out that Dr. Avery’s opinion doesn’t delineate the appropriate treatment. But the appropriate treatment is what she got and everyone has her medical records.

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