Credit: By santypan/

A Texas Court of Appeals has determined there is enough evidence for a 39-year-old plaintiff to pursue a medical malpractice case against a doctor who allegedly failed to save his testicle and later told the man the removal was no “big deal” because he wouldn’t be having any children at that age.

Heriberto Martinez-Gonzalez sought emergency care at Elite Care Emergency Center in Lewisville and Dr. Harvey Castro for abdominal and flank pain which was later diagnosed at Dallas’ Parkland Memorial Hospital as a torsed testicle.

Martinez-Gonzalez also claimed that he complained of thigh and groin pain but the complaint was not recorded.

Castro claimed that Martinez-Gonzalez denied any testicular pain, diagnosed him with an umbilical hernia and told him to follow up with a gastroenterologist and return to Elite Care if his conditions did not improve.

Martinez-Gonzalez did return to Elite Care the next day with severe groin and testicular pain as well as abdominal pain. Castro alleges he advised Martinez-Gonzalez to check into Elite Care for further evaluation or possible transport to another hospital but was refused as Martinez-Gonzalez only wanted pain medication. Martinez-Gonzalez disputes this account and claimed that Castro suggested he should go to Parkland because there was nothing else he could do for him.

Martinez-Gonzalez left Elite Care and sought treatment at Parkland where medical personnel performed a genital examination and diagnosed him with testicular tortion. After exploratory surgery, the testicle was found to be nonviable and was removed.

While he was recovering from surgery, Martinez-Gonzalez called Elite Care to express his extreme disappointment in their failure to examine him or to call an ambulance and transfer him to Parkland. Martinez-Gonzalez alleged that Castro returned the call and apologized and said he was trying to save him money on ambulance fees and that the removal of his testicle should not be a “big deal” because of his age.

Martinez-Gonzalez later sued Elite Care and Castro in a Denton district court for medical malpractice and included an affidavit from a doctor that Castro failed to follow the standard of care by failing to perform a groin exam which, had it been done, “the patient would not have lost his right testicle due to torsion.”

But the defendants later convinced the trial judge to toss the case out after asserting there was no evidence to support the “willful and wanton” deviation from the standard of care element required before Martinez-Gonzalez could sue an emergency room doctor on Texas’ medical malpractice laws—a decision Martinez-Gonzalez appealed to Fort Worth’s Second Court of Appeals.

In its decision in Martinez-Gonzalez v. Elite Care Emergency Center, the Second Court ruled that after reviewing the entire record there was enough evidence for Martinez-Gonzalez to pursue his medical malpractice claims against Elite Care and Castro.

“More than a scintilla of evidence exists that would enable reasonable and fair-minded jurors to differ in their conclusions as to whether Dr. Castro’s deviations from the standard of care on March 13, 2014 were done with willful and wanton negligence,” wrote Justice Sue Walker, reversing and remanding the case for further hearings.