Tejada v. Gernale

• Decision Date: 11 August 2011
• Docket Number: No. 01–10–00569–CV.,01–10–00569–CV.
• Citation: 363 S.W.3d 699
• Parties: Ronnie TEJADA and Rose Tejada as Next Friend of Kelsey Tejada and Kaylie Tejada, Appellants, v. Virgilio GERNALE, Appellee.
• Court: Texas Court of Appeals

363 S.W.3d 699

Ronnie TEJADA and Rose Tejada as Next Friend of Kelsey Tejada and Kaylie Tejada, Appellants,

v.Virgilio GERNALE, Appellee.

No. 01–10–00569–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Aug. 11, 2011.

Bryan Adam Terrell, Weller, Green, Toups & Terrell, Beaumont, TX, for Appellants.

Erin L. Leeser, Randall S. Richardson, Fulbright & Jaworski, L.L.P., Houston, TX, Kathleen Marie Kennedy, Mehaffy Weber, Beaumont, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

JANE BLAND, Justice.

In this medical-malpractice case, Ronnie and Rose Tejada appeal the trial court's summary judgment favoring appellee, Virgilio Gernale, M.D. The Tejadas contend that trial court erred by granting summary judgment because they timely filed their claims within the applicable limitations period, a res judicata defense with respect to an earlier filed federal suit is without merit, and they raised a fact issue that Gernale's negligence proximately caused their injuries. We conclude that (1) Gernale has not conclusively proved that limitations bars his alleged acts of negligence; (2) Gernale was not a party or in privity with a party to the earlier federal case, precluding a judgment based on res judicata; and (3) a fact issue exists as to whether Gernale's negligence caused Tejada's injuries. We therefore reverse and remand for further proceedings.

Background

From November 2004 to October 2005, Ronnie Tejada was incarcerated in the Jefferson County Jail. During that time, NaphCare, Inc. administered medical care for the inmates under a contract with Jefferson County. NaphCare in turn hired Gernale to provide physician services.

On intake, Tejada reported to NaphCare personnel that, four years before, he had fallen from a height of 45 feet, necessitating the installation of plates in his skull, and that he was blind in his right eye. He reported that he had a personal history of diabetes but that he had no current problems with the disease and was not taking any diabetic medication. Tejada weighed 165 pounds. NaphCare personnel recorded these details in Tejada's medical chart.

In December, Tejada completed a health-services-request form, in which he complained of a number of loose teeth. A dentist diagnosed him as having periodontal disease; however, Tejada refused any teeth extractions. In January, Tejada explained that a baseball had struck the right side of his head and that the plates on that side were hurting and sore. Tejada also complained of deteriorating vision in his left eye and pain in his left wrist, right hand, and left leg. A physician prescribed naproxen, a pain reliever. In mid-February, Tejada again complained that his plates were hurting and sore, and he requested that his brain surgeon be contacted to treat him.

On February 21, 2005, Gernale reviewed Tejada's chart after a nurse informed him that Tejada had refused the pain reliever. On February 22, Gernale examined Tejada for the first time. Tejada reported that a prior doctor had instructed him not to take any pain medication. Gernale was aware of Tejada's history of diabetes, his head pain, and his recent dental issues. Yet, Gernale did not perform a blood sugar test to determine if Tejada's diabetes was under control. He discharged the pain medicine order and ordered that Tejada not be scheduled for another doctor's appointment unless he was willing to take pain medication.

Three days later, on February 25, Tejada complained of continuing deterioration of vision in his left eye and worsening pain near his skull plates. Two day later, on February 27, Tejada reported having lost between 20 and 25 pounds, and he requested a soft diet.

In early and mid-March, Tejada had two appointments with Gernale. On both occasions, Gernale examined Tejada but did not check Tejada's blood sugar level. In late-March, Gernale ordered Tejada a soft diet, and he referred Tejada to an outside neurologist to address Tejada's head pain. In early April, the outside neurologist refused to see Tejada, saying that Tejada instead needed to see a neurosurgeon. That same day, Gernale signed an order referring Tejada to a neurosurgeon.

In early May, complaining that he was losing too much weight, Tejada requested a double portion of food.

On May 3, a nurse notified Gernale that NaphCare had been unable to find a neurosurgeon who would see Tejada. The next week, Tejada again complained of head pain. On May 5, Gernale ordered the nurses to weigh Tejada and, if he weighed significantly less than 165 pounds, to give him a double-portion diet for the next 90 days. After weighing him, the nurses subsequently placed Tejada on a double-portion diet.

On May 22, Tejada completed another health-services-request form, yet again complaining of head pain. Tejada insisted that he needed help immediately and asked to see his brain surgeon. On May 27, Tejada had his fourth and final appointment with Gernale. Like before, Gernale did not perform a blood sugar test.

On July 12, Gernale conducted a chart review, but he did not meet with Tejada. Citing the inability to find a neurosurgeon willing to accept Tejada because he was an inmate, Gernale cancelled his standing order referring Tejada to a neurosurgeon and ordered that Tejada be sent to the emergency room if an emergency developed. In full, Gernale wrote:

Chart Review Only—[Patient] have not sent ¹ any SCR ² about brain problems— Can't get anybody locally to evaluate the patient / was seen by a neurologist but it should have been a neurosurgeon, no neurosurgeon will accept this patient because he is an inmate.

Plan. Cancel previous referral to a neurosurgeon, will send [patient] to ER for any emergency situation/concerns.

On October 4, Tejada complained to a nurse that he could not void, was blind, had “right side pain,” and had not eaten in four days. On October 5, Tejada was very weak and, when attempting to stand, he fell to the floor. Tejada reported that he had not eaten in five days. Tejada was then transported to the emergency room at St. Elizabeth Hospital, suffering from dehydration and malnutrition. A blood sugar test revealed that he was in a state of severe hyperglycemia, with a blood sugar level of 460 mg/dL. Within a month, doctors amputated both of Tejada's legs blow the knees.

In June 2006, the Tejadas filed suit in federal district court against NaphCare, Jefferson County, and others, arising out of his treatment while incarcerated at Jefferson County Jail. In May 2007, the Tejadas moved to join Gernale as an additional defendant, but the federal court denied the Tejadas' motion. A jury later returned a verdict in favor of the federal-court defendants, and the federal court rendered a take-nothing judgment.

Meanwhile, on July 11, 2007, the Tejadas notified Gernale in writing of their health-care-liability claims against him in compliance with Chapter 74 of the Texas Civil Practices and Remedies Code. On September 24, the Tejadas sued Gernale, asserting that he negligently failed to test for, treat, or follow up on Tejada's disclosed diabetes. The Tejadas filed their suit 2 years and 74 days after July 12, 2005, the date Gernale reviewed Tejada's chart and cancelled his order referring Tejada to a neurosurgeon.

The Tejadas' expert, Philip Raskin, an endocrinologist specializing in the treatment of diabetes, testified that Gernale's negligence in failing to diagnose Tejada's diabetes—which could have easily been confirmed with a simple blood sugar test—caused Tejada's injuries.

Gernale then moved for summary judgment, asserting that the statute of limitations and res judicata conclusively bar the Tejadas' claims and that no evidence exists that Gernale's negligence caused Tejada's injuries. Responding to Gernale's motions, the Tejadas attached an affidavit from Raskin. In the affidavit, Raskin stated that Gernale breached the applicable standard of care on July 12, when, after reviewing Tejada's medical chart—a chart revealing that Tejada had a history of diabetes and was then exhibiting a number of severe diabetic symptoms—he failed to order Tejada's blood sugar level be tested and discontinued any follow-up absent presentment to an emergency room. Raskin had testified earlier in his deposition, however, that the last date Gernale “committed medical malpractice” against Tejada was May 5, when Gernale ordered the nurses to weigh Tejada and, if he weighted significantly less than 165 pounds, to give him a double-portion diet for the next 90 days. In light of this testimony, Raskin averred, “After further consideration of the medical records [I realize that] I made [the deposition] statement [regarding the last date of malpractice] in error.”

Standard of Review

An appellate court reviews de novo a trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). A court considers the summary-judgment evidence in the light most favorable to the nonmovant. Id. To prevail on a motion for traditional summary judgment, a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Mann Frankfort Stein, 289 S.W.3d at 848. After an adequate time for discovery, a party may move for no-evidence summary judgment on the ground that no evidence exists of one or more essential elements of a claim or defense on which the adverse party bears the burden of proof at trial. Tex.R. Civ. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The trial court must grant the motion unless the nonmovant presents more than a scintilla of evidence raising a genuine issue of material fact on each element specified in the motion. Tex.R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006); Merrell Dow Pharms., Inc. v. Havner,...