Morrison v. Asamoa
| Decision Date | 12 May 2022 |
| Docket Number | 11-20-00125-CV |
| Court | Texas Court of Appeals |
| Parties | SYLVIA MORRISON AND RICK MORRISON, Appellants/ Cross-Appellees v. NANCY ASAMOA, M.D.; JOHN MCKENNA, M.D.; SATISH MOCHERLA, M.D.; HAYAN ORFALY, M.D.; PERMIAN PREMIER HEALTH SERVICES, INC.; ASIF ALI KHAN ANSARI, M.D.; AND RACHNA BHARTI, M.D., Appellees & TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER AT ODESSA, Appellee/Cross-Appellant |
On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No. CV55942
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
In this interlocutory appeal, Appellants/Cross-Appellees Sylvia and Rick Morrison (Appellants) contend that the trial court abused its discretion in ruling that their medical expert report was deficient and in granting six separate motions to dismiss Appellants' health care liability claims against seven of the appellees.[1] See Tex. Civ. Prac. & Rem Code Ann. §§ 51.014(a)(10), 74.351 (West Supp 2021).
In their respective dismissal motions before the trial court, Appellees objected on one or a combination of the following grounds. First, that Appellants' expert, Dr. James Paine, is not qualified to opine on the standard of care applicable to physicians outside of his particular area of specialization, namely obstetrics and gynecology. See id. § 74.351(r)(5) (West Supp. 2021), § 74.401 (West 2017). Second, that Dr. Paine's expert reports failed to adequately articulate an applicable standard of care or how the medical care provided by Appellees fell below the applicable standard of care. See id. § 74.351(l), (r)(6). Lastly, that Dr. Paine's expert report failed to adequately explain how any alleged breach caused Appellants' injuries. See id. After careful review of Dr. Paine's reports, we hold that the trial court abused its discretion in granting Appellees' motions to dismiss. Therefore, we reverse the trial court's order and remand Appellants' claims against Appellees to the trial court for further proceedings.
Cross-Appellant Texas Tech University Health Sciences Center at Odessa (TTUHSC) filed a separate interlocutory appeal from the trial court's order denying in part its motion to dismiss.[2] The trial court denied TTUHSC's motion to dismiss with respect to Appellants' claims arising from acts or omissions of Sylvia's original surgeon, Kathryn Hutton, D.O., an employee of TTUHSC. On appeal, TTUHSC asserts that Appellants failed to demonstrate that TTUHSC waived its sovereign immunity under the Texas Tort Claims Act (TTCA) and, having shown that, asks that we render judgment dismissing Appellants' claims against TTUHSC for lack of subject-matter jurisdiction. See Civ. Prac. & Rem. § 101.021(2) (West 2019). For the reasons stated below, we agree. Therefore, we reverse the trial court's order as it pertains to TTUHSC and render judgment dismissing Appellants' claims against TTUHSC with prejudice for lack of subject-matter jurisdiction.
We base the following factual summary on the statements made in Dr Paine's original and first supplemental expert reports.[3] On January 17, 2018, Sylvia Morrison underwent a total, laparoscopic hysterectomy. The surgery was performed by Dr. Kathryn Hutton, an employee of TTUHSC.[4] Sylvia sustained an injury to her ureter during that surgery and the ureteral injury resulted in leakage of urine into her peritoneal cavity. This subsequently resulted in a myriad of infections and other postoperative complications that ultimately led to her hospitalization at Midland Memorial Hospital (Midland Memorial). She was admitted on January 29, 2018, with persistent nausea, vomiting, diarrhea, abdominal pain, fever, sepsis, acute renal failure, and a high white blood cell count. Sylvia's ureteral injury and leakage of urine into her peritoneal cavity was not accurately diagnosed and properly treated until March 8, 2018, more than a month after her admission to Midland Memorial.
During her fifty-four-day hospitalization at Midland Memorial, Sylvia was seen by numerous medical doctors, including her original surgeon, Dr. Hutton, and multiple physicians, six of whom, alongside Permian Premier Health Services, Inc. (Permian), [5] are the Appellees in this matter. These include three hospitalists (Dr. Nancy Asamoa, Dr. Rachna Bharti, and Dr. Hayan Orfaly), a nephrologist (Dr. Asif Ansari), an infectious disease specialist (Dr. Satish Mocherla), and a pulmonologist (Dr. John McKenna). During Sylvia's stay at Midland Memorial, the aforementioned physicians conducted a score of invasive tests and medical procedures, haplessly treating Sylvia's persistent symptoms and infections. An ultrasound conducted on the day of her admission revealed that Sylvia was suffering from hydronephrosis, which is "cystic distension of the kidney caused by the accumulation of urine in the renal pelvis as a result of obstruction to outflow and accompanied by atrophy of the kidney structure and cyst formation." Hydronephrosis, Merriam-Webster.com, https://www.merriam-webster.com /medical/hydronephrosis (last visited May 10, 2022).
Consistently throughout the duration of her hospitalization, Sylvia suffered from ascites and pleural effusions. These constant, abnormal buildups of fluid in parts of Sylvia's body were routinely treated with paracentesis and thoracentesis to remove those fluids.
According to Dr. Paine's expert reports, each of the six appellee-physicians and Dr. Hutton could have and should have conducted a complete differential diagnosis, [6] but they failed to do so. None of them documented any consideration that Sylvia's recent hysterectomy may have precipitated, and her subsequent pathology may be the result of, a ureteral injury that she sustained during that surgery. Dr. Paine opined that ureteral injury is a common postoperative complication seen in hysterectomy patients. Dr. Paine opined that Sylvia's recent surgery, hydronephrosis, and high white blood cell count should have prompted Appellees and Dr. Hutton to include a ureteral injury in a differential diagnosis. He concluded that the likely source of injury and infection would have been revealed by performing a serum creatine[7] test and confirmed by a CT nephrogram.[8] But it was not until March 8, 2018, that such testing was performed. At that point, Dr. Michael Dragun, a consulting urologist, diagnosed Sylvia's ureteral injury. He confirmed that the original cause of Sylvia's recurring ascites, sympathetic pleural effusions, abdominal pain, and other symptoms was the ureteral injury she sustained during her hysterectomy. On March 9, 2018, he ordered that a nephrostomy-"the surgical formation of an opening between a renal pelvis and the outside of the body," Nephrostomy, Merriam-Webster.com, https://www.merriam-webster.com /medical/nephrostomy (last visited May 10, 2022)-be performed in order to prevent further draining of urine into Sylvia's peritoneal cavity.
It was not until after weeks of hospitalization that an accurate diagnosis was made and that the urine which had been leaking into Sylvia's peritoneal cavity was diverted. Sylvia began to improve and was discharged to a rehabilitation and care facility on March 23, 2018.
Subject-Matter Jurisdiction-Appellants' claims against TTUHSC.
TTUHSC contends that the trial court lacks subject-matter jurisdiction because Appellants' pleadings fail to establish that TTUHSC, as a governmental unit, waived its sovereign immunity under the TTCA. See Civ. Prac. & Rem. § 101.021(2). The original answer of TTUHSC filed by the Texas Attorney General pled, as a defense to Appellants' claims, sovereign immunity and the protection of Chapter 101 of the Texas Civil Practice and Remedies Code, but no trial court ruling regarding same appears in the record. TTUHC is entitled, however, to make this argument on interlocutory appeal. Rusk State Hosp. v. Black, 392 S.W.3d 88, 94 (Tex. 2012). Importantly, Appellants, having had a full and fair opportunity to do so, [9] failed to plead facts and allegations that, if true, would establish that TTUHSC waived its sovereign immunity from suit and liability.
Unless waived or abrogated, sovereign immunity shields the state and its agencies from a lawsuit for damages by depriving the trial court of subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). "Whether a court has jurisdiction is a question of law that is reviewed de novo." City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010) (per curiam) (citing Miranda, 133 S.W.3d at 226).
"A party suing the governmental unit bears the burden of affirmatively showing waiver of immunity." Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 512 (Tex. 2019) (citing Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)). "To determine whether the party has met this burden, we may consider the facts alleged by the plaintiff and the evidence submitted by the parties." Id. (citing Tex. Nat. Res. & Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001)). In doing so, "we 'construe the plaintiff's pleadings liberally, taking all factual assertions as true, and look to the plaintiff's intent.'" Id. (quoting Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012)). "In some instances the pleadings or record may conclusively negate the existence of jurisdiction, in which case the suit should be dismissed." Rusk State Hosp., 392 S.W.3d at 96 (citing Miranda, 133 S.W.3d at 227).[10]
"When a claimant asserts a healthcare-liability claim against a governmental entity that is a healthcare provider, the claimant must comply with both the Medical Liability Act and the [TTCA]."...
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