Campbell v. Pompa, 02-18-00040-CV

• Decision Date: 15 August 2019
• Docket Number: No. 02-18-00040-CV,02-18-00040-CV
• Citation: 585 S.W.3d 561
• Parties: Tamisha Nicole CAMPBELL, Individually and as Guardian and Next Friend of Tamatha Nanette Williams, an Incapacitated Person, Appellant v. Paul H. POMPA, M.D. and Marcus Lesly Weatherall, M.D., Appellees
• Court: Texas Court of Appeals

585 S.W.3d 561

Tamisha Nicole CAMPBELL, Individually and as Guardian and Next Friend of Tamatha Nanette Williams, an Incapacitated Person, Appellant

v.Paul H. POMPA, M.D. and Marcus Lesly Weatherall, M.D., Appellees

No. 02-18-00040-CV

Court of Appeals of Texas, Fort Worth.

Delivered: August 15, 2019

Opinion by Justice Birdwell

Tamisha Campbell filed health care liability claims against Dr. Paul Pompa and Dr. Marcus Weatherall, who rendered care to her mother, Tamatha Williams, shortly before she sustained severe brain injuries

. The jury rendered a verdict in favor of the defendants. In her first two issues, Campbell contends that the great weight of the evidence shows that Dr. Pompa did not render emergency medical care to Tamatha, and even if he did, Dr. Pompa and Dr. Weatherall acted with gross negligence sufficient to satisfy the heightened burden of proof that applies to certain emergency medical care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.153. We conclude that the jury's findings to the contrary were supported by factually sufficient evidence.

In her third issue, Campbell challenges the composition of her venire panel, arguing that the use of an electronic jury summons system resulted in a venire that was disproportionately Caucasian, affluent, educated, and young. We hold that Campbell's claim should be moored to and judged under the standards articulated in Duren v. Missouri.¹ Because Campbell introduced no evidence to satisfy Duren's elements, we conclude that the trial court properly ruled against her challenge.

Campbell failed to preserve her fourth and final issue regarding the admission of evidence. Accordingly, we affirm.

I. Background

A. December 10

On Monday, December 10, 2012, Tamatha went to the TotalCare Clinic in Fort Worth, complaining of trouble swallowing, trouble breathing, and "severe" throat pain starting the day before, which she rated at ten out of ten. She was diagnosed with swelling in the head and neck. The doctor treated her with steroids and recommended that she go to the emergency room immediately, and the medical records show that Tamatha agreed to go "now." Tamatha instead went home to rest and then returned to her job as a bus driver that afternoon.

B. December 11

On the morning of December 11, 2012, Tamatha reported to work early. After finishing her morning shift, Tamatha went to the emergency room at Texas Health Harris Methodist Hospital Southwest Fort Worth ("Texas Health Southwest") at 9:16 a.m.

At 9:20 a.m., nurse Kimberly Harbold triaged Tamatha. Among her symptoms, Tamatha reported chest pain. Tamatha described her pain as ten out of ten, which Harbold explained to patients meant "the worst [pain] you've ever experienced in your life." Harbold ordered an EKG to rule out heart problems. The EKG revealed an abnormality not associated with acute coronary issues. Harbold triaged her as a level three out of five, which was defined as "urgent."

Dr. Paul Pompa saw Tamatha at 10:09 a.m. He documented symptoms including chest tightness, sore throat, high blood pressure

, difficulty swallowing, and tenderness—but significantly, he did not observe any swelling. Within his differential diagnosis, he considered an array of possible diagnoses, including heart attack. However, he ruled out many of these possibilities based on testing and evaluation. He was soon convinced that Tamatha's situation did not present an emergency or anything warranting admission to the hospital. At 10:19 a.m., he determined that her symptoms best fit the diagnoses of upper respiratory infection, chest wall inflammation, ear infection, and hypertension. At 10:23 a.m., he informed Tamatha of his diagnosis and told her that she was being discharged from the emergency room with medications.

During the discharge process, Tamatha was assessed by a nurse, who documented additional symptoms. Like Dr. Pompa, though, she did not observe any swelling. Tamatha was discharged shortly after 11:00 a.m.

C. December 12

When Tamatha woke the next morning, her face, tongue, and neck were swollen to the point that it was difficult to breathe. She returned to Texas Health Southwest's emergency department at 5:45 a.m. She was seen by Dr. Marcus Weatherall, who immediately recognized it as a dire situation and knew she was at high risk of losing her airway due to the swelling. The hospital tested and treated her for possible allergic and infectious reactions, to no avail. Dr. Weatherall determined that Tamatha might have to be intubated, so he ordered sedatives around 6:15 a.m.

Recognizing that intubation might be difficult, Dr. Weatherall contacted Dr. Jones, an anesthesiologist experienced in airway management. Dr. Jones in turn recommended that an ear, nose, and throat specialist or a trauma surgeon be present during intubation in case there was a need to surgically establish an airway through the neck. No specialist or trauma surgeon was available, so it was decided that the next best option was the general surgeon on call, Dr. Domingo Tan. At 6:19 a.m., staff contacted Dr. Tan, who began to drive in from his home thirty minutes away. Tamatha was transferred to the operating room to await Dr. Tan's arrival. At this point, Tamatha was barely able to gasp one-word answers to the staff's questions, though her oxygen levels were still within normal limits. His shift about to end, Dr. Jones briefed a new anesthesiologist on the case, though Dr. Weatherall was unaware of this.

At 6:38 a.m., Tamatha went into respiratory distress, and hospital staff began anesthesia

to prepare for intubation. At about 6:45 a.m., Dr. Tan was still not at the hospital, so staff contacted the only surgeon on call, Dr. Darren Chapman, a urologist who had never performed a surgical airway procedure. When Dr. Chapman was called into the operating room, he began reading the directions to the surgical airway kit while the anesthesiologist attempted to intubate Tamatha. After five minutes of reading, Dr. Chapman was interrupted by the anesthesiologist, who told him that he needed to begin the surgical airway procedure immediately. Tamatha's airway had shut, and she was no longer breathing. Dr. Chapman made an incision, and as he attempted to thread a guide-wire into Tamatha's trachea, she went into cardiac arrest

. Chest compressions were started, and Dr. Chapman made a second attempt to thread the wire. The wire went through and came out of Tamatha's mouth. The anesthesiologist used the wire to intubate Tamatha without a surgical airway.

By the time her airway and heart rhythm were restored, Tamatha had sustained irreversible brain injuries

due to lack of oxygen, leaving her in a vegetative state. Dr. Tan arrived around 7:00 a.m. and closed the wounds to Tamatha's neck caused by the attempted surgical airway.

D. Campbell Files Suit

Campbell filed health care liability claims individually and as guardian and next friend of her mother. Named as defendants were TotalCare, Dr. Pompa, Dr. Weatherall, and other parties not at issue in this appeal. Before trial, Campbell nonsuited her claims against TotalCare and filed a motion in limine seeking to prevent disclosure of her former TotalCare claims. The trial court denied the motion.

The case was tried before a jury in September 2017. At trial, Campbell theorized that Tamatha had suffered from angioedema

, a leaking of the blood vessels which causes swelling in the face and neck. Campbell argued that Dr. Pompa was liable for misdiagnosing Tamatha's condition on December 11 and that Dr. Weatherall was liable for mistreating her condition on December 12.

The jury found that Dr. Pompa rendered "emergency medical care" on December 11, triggering a heightened burden of proof that required Campbell to show that he acted with "wilful and wanton negligence." See id. Campbell did not dispute that Dr. Weatherall rendered emergency medical care on December 12. The jury found that neither doctor acted with wilful and wanton negligence. Accordingly, the trial court rendered a take-nothing judgment against Campbell. She appeals.

II. Emergency Medical Care

In her first issue, Campbell contests the jury's finding that Dr. Pompa rendered emergency medical care. She asserts that the heightened burden of proof provided by section 74.153 is an affirmative defense which Dr. Pompa waived by failing to specifically plead it in his answer.

In the alternative, Campbell argues that the jury's finding that Dr. Pompa rendered emergency medical care is not supported by factually sufficient evidence. She asserts that the overwhelming weight of the contrary evidence—including Dr. Pompa's admission that he did not consider Tamatha's situation to be an emergency—should compel the conclusion that Dr. Pompa did not render emergency medical care under the meaning of the statute.

A. General Applicable Law

Section 74.153 governs health care liability claims for injuries or death arising out of the "provision of ‘emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.’ " Burleson v. Lawson , 487 S.W.3d 312, 317 (Tex. App.—Eastland 2016, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 74.153 ). When it applies, the statute provides that the claimant

may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.

Tex. Civ. Prac. & Rem. Code Ann. § 74.153. These statutory provisions do not change the standard of care for an emergency room health care provider, but they heighten the burden of proof required by the claimant. Benish v....