City of El Paso v. Hernandez

• Decision Date: 16 March 2000
• Docket Number: No. 08-99-00315-CV,08-99-00315-CV
• Parties: (Tex.App.-El Paso 2000) THE CITY OF EL PASO, Appellant, v. PEDRO HERNANDEZ, Individually and on behalf of all statutory beneficiaries of the Estate of ANDREA HERNANDEZ, Deceased, Appellees
• Court: Texas Court of Appeals

Page 409

16 S.W.3d 409 (Tex.App.-El Paso 2000)

THE CITY OF EL PASO, Appellant, v. PEDRO HERNANDEZ, Individually and on behalf of all statutory beneficiaries of the Estate of ANDREA HERNANDEZ, Deceased, Appellees.

No. 08-99-00315-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

March 16, 2000

Appeal from 383rd District Court of El Paso County, Texas (TC# 95-10948) [Copyrighted Material Omitted] John Gates, Asst. City Atty., El Paso, for Appellant.

Gil Gonzalez, M. Mitchell Moss, Robles, Bracken, Coffman & Hughes, L.L.P., El Paso, for Appellee.

Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

O P I N I O N

McCLURE, Justice.

Pedro Hernandez, Individually and on behalf of all statutory beneficiaries of the Estate of Andrea Hernandez, Deceased (Appellees), brought this negligence case under the Texas Tort Claims Act based on an allegation that the delay in dispatching an ambulance from one El Paso hospital to another resulted in the death of Andrea Hernandez. Raising five issues for review, the City of El Paso brings an interlocutory appeal from the denial of its motion for summary judgment and plea to the jurisdiction based on sovereign immunity. See TEX.CIV.PRAC.&REM.CODE ANN. 51.014(a) (5) & (a)(8)(Vernon Supp. 2000). The facts of this case present not only a frightening but egregious example of the harm which results from the failure of an emergency ambulance service to properly implement a patient transport policy when a patient's life hangs in the balance.¹ Despite the heroic efforts of several physicians and other personnel to expedite the transfer and then to ultimately save the patient's life, the unneccessary delay in dispatching an ambulance resulted in the death of Andrea Hernandez. The issue before us, however, is not whether the City of El Paso was negligent, but rather whether this claim falls within the Texas Tort Claims Act so that the City of El Paso's sovereign immunity is waived. Finding error, we reverse and remand for trial against the remaining defendant.

FACTUAL SUMMARY

On the morning of October 5, 1993, fifty-six-year-old Andrea Hernandez became ill at her El Paso home and told her daughter, Sylvia Hernandez, that she needed to go to the hospital. When Sylvia saw her mother begin "clamping her teeth," she called 9-1-1. An ambulance quickly arrived and transported Mrs. Hernandez to Thomason Hospital even though she lived much closer to Columbia Medical Center East. Surgeons at Thomason performed emergency exploratory surgery and determined that Mrs. Hernandez suffered from a dissecting aneurysm in the ascending aorta. Because further treatment required a heart-lung machine which Thomason did not have, Dr. Michael Oszczakiewicz,² chief of thoracic surgery at Thomason, determined that Mrs. Hernandez should be transferred immediately by ambulance to Providence Hospital in El Paso. A doctor at Thomason, identified in the record only as Dr. Hiller, contacted Emergency Medical Services (EMS) to initiate the transfer of Mrs. Hernandez to Providence. Raul Ponce,an EMS dispatcher, advised Dr. Hiller that due to an EMS policy pertaining to the emergency transfer of patients from one hospital to another, he could not dispatch an ambulance until the administration office at Providence notified EMS that Providence had accepted the patient. That policy also required that a doctor or nurse accompany the patient. Before concluding the call, Dr. Hiller informed Ponce that Dr. Oz was both the transferring and accepting physician and would accompany Mrs. Hernandez to Providence. When Jane Odom, a Thomason nursing supervisor, later called to determine whether an ambulance had been dispatched, Ponce reiterated the requirements of the transfer policy. Odom then called the administrative secretary at Providence several times in an effort to obtain that institution's approval of the transfer. Each time, the administrative secretary told Odom that they were still looking for the administrator. Other evidence showed that the administrator could not be reached because he was out of town. Similarly, personnel in Thomason's admitting office repeatedly called the admitting office at Providence to determine whether they would accept the patient but could not obtain an answer. Dr. Oz also called Providence's administrative office in an effort to obtain the approval needed by EMS.

At an undetermined time later, EMS personnel who had just transported another patient to Thomason contacted Ponce and informed him that Thomason was requesting that they immediately transfer Mrs. Hernandez to Providence. Ponce again insisted that the transfer would not be authorized until Providence accepted the patient. Ponce then contacted his field supervisor, Divenus "Tiny" Parker, about the situation. When she agreed that Mrs. Hernandez could not be transferred until Providence accepted her, Ponce asked Parker to call Thomason because they had been "hassling" him. At some point after this call, Alice Gordon, the administrator on call at Providence, called Ponce and informed him that Dr. Oz had just spoken with her about Mrs. Hernandez and the need for her to be transferred to Providence immediately. She specifically informed Ponce that she was the administrator on call and that Providence would accept the patient, and she requested that EMS "please hurry." Despite having all of the information he needed to authorize the ambulance waiting at Thomason to transfer Mrs. Hernandez, Ponce did not do so.

Several minutes later, Dr. Oz called Ponce in an effort to stress the emergency nature of the situation and to find out why EMS would not transfer Mrs. Hernandez. When Ponce attempted to argue with the doctor about the need for the transfer by telling him that Mrs. Hernandez was already in a facility where she could be treated, Dr. Oz quickly corrected him and stated that she could not be treated at Thomason because they did not have a heart-lung machine. Dr. Oz told Ponce that it had been thirty minutes since they first requested the ambulance and that Mrs. Hernandez was dying. Ponce replied that he would have his supervisor call Dr. Oz.

After hanging up with Dr. Oz, Ponce called Providence's admitting office in an effort to determine whether Providence had accepted the transfer. Ponce initially told Providence that the patient's name was Alice Gordon (the name of Providence's administrator on call who he had spoken with only minutes earlier) but after a few moments, he realized that was not correct. He also had difficulty in relaying the diagnosis and the reason for the transfer but he finally gave them that information after speaking with someone else at EMS. Providence informed Ponce that they would have to call him back. Ponce then called Parker and told her that he was angry because Dr. Oz had threatened him and said he not doing his job. They discussed how they had these "threats" on tape. After discussing these matters of personal interest, Ponce finally told Parker that Alice Gordon, who he misidentified as a "nursing supervisor" from Providence, had accepted the patient and he asked Parker whether they could accept that authorization. Parker replied that the authorization had to be from a doctor and said that they still needed to know precisely where at Providence the patient was to be taken. Ponce told Parker that the patient's chest had been opened up and that she was "going down bad." After discussing whether they should authorize the transfer, Parker continued to insist that they needed to know where the patient was supposed to go once at Providence. Ponce concluded this call with Parker without authorizing the transfer.

Sometime after this call, Eduardo Martinez, another EMS dispatcher, received a call from Charlie Lozano, an EMS medic, who informed Martinez that one of the doctors at Thomason wanted them to transfer Mrs. Hernandez to the helicopter pad immediately. Martinez told them to wait because they had Parker on the line and they were waiting for her to authorize the transfer. Lozano put Dr. Salcedo from Thomason on the line who told Martinez that they had opened up the chest of Mrs. Hernandez and found that she had an aortic dissection and they could not do anything further at Thomason. He also told Martinez that "she's got only a few minutes" and that her life depended on whether she got to Providence "now." He additionally gave Martinez the same information that had been given to Ponce earlier, that is, Dr. Oz would be the accepting physician at Providence and he would be traveling with the patient. When Dr. Salcedo asked whether they could get the approval from the supervisor while en route with the patient, Martinez replied that they could not. Still later, an unidentified dispatcher at EMS spoke with EMS personnel in the ambulance located either at or near Thomason to determine exactly where at Providence Mrs. Hernandez needed to be transferred. The ambulance personnel replied that she needed to go directly to the "O.R." At this point, the dispatcher finally authorized them to transfer Mrs. Hernandez.

Tragically, Mrs. Hernandez died in the operating room at Providence. Later that same day, Dr. Oz called EMS and informed them that Mrs. Hernandez had died as a result of their substantial delay in dispatching the ambulance. Although the evidence does not reflect the exact amount of time which passed before EMS dispatched the ambulance, Dr. Oz stated in his written death summary that there was a delay of thirty to forty-five minutes.

On August 31, 1995, Appellees filed suit against the City of El Paso and the El Paso Hospital District, operating as R.E. Thomason General Hospital, under the Texas Tort Claims Act, and they filed a negligence claim against Providence Memorial Hospital.³ With regard to its suit against the City of El Paso, Appellees alleged first that sovereign immunity had been waived in that EMS employees negligently used and misused tangible personal property,...