Texas Tech University v. Lucero

• Decision Date: 02 August 2007
• Docket Number: No. 08-05-00297-CV.,08-05-00297-CV.
• Citation: 234 S.W.3d 158
• Parties: TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Appellant, v. Rickey LUCERO and Larry Lucero, Survivors and Heirs at Law of Patricia Lucero, Decedent, and The Estate of Patricia Lucero, Appellees.
• Court: Texas Court of Appeals

234 S.W.3d 158

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Appellant, v. Rickey LUCERO and Larry Lucero, Survivors and Heirs at Law of Patricia Lucero, Decedent, and The Estate of Patricia Lucero, Appellees.

No. 08-05-00297-CV.

Court of Appeals of Texas, El Paso.

August 2, 2007.

Rehearing Overruled September 5, 2007.

Elsa Nava, Office of the Attorney General, Tort Litigation Division, Austin, for appellant.

Heather A. Ronconi, El Paso, for appellees.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This is a medical malpractice case filed against a governmental entity pursuant to the Texas Tort Claims Act (the Act). Texas Tech University Health Sciences Center (Tech) appeals from a judgment rendered in favor of Rickey Lucero and Larry Lucero, Survivors and Heirs at Law of Patricia Lucero, Decedent, and the Estate of Patricia Lucero (Lucero). We affirm.

FACTUAL SUMMARY

On January 22, 2001, seventy-eight-year-old Patricia Lucero underwent laproscopic removal of her gallbladder. A Tech physician, Dr. Emmett McGuire, performed the surgery. The procedure was successful and Lucero was discharged from the hospital the following day. She had follow-up visits at Tech in February and March. At the March visit, she complained of abdominal pain. A liver function test showed an elevated level of alkaline phosphatase which can indicate inflammation in the bile duct. On May 11, Lucero telephoned Tech and complained of intermittent pain radiating from the epigastric area to the left side of the chest. A resident physician, Dr. Hyo-Rang Lee, wrote on the chart that a chest x-ray, EKG, and a basic metabolic panel with CBC should be performed, with Lucero receiving the next available appointment thereafter. Dr. Lee did not order the tests and there is no indication that the nursing staff contacted Lucero. Lucero saw Dr. McGuire on May 16 and he noted her complaint about pain on the left side. According to Dr. McGuire, her complaints were not consistent with a bile leak or stricture.

Lucero returned to Tech on June 5 for another follow-up visit. She saw Dr. Lee and described pain in the upper left quadrant of her abdomen, as well as back pain and tingling in her left hand. Dr. Lee ordered a CT scan and liver function lab work, but these tests were not performed until August 16.

Meanwhile, Lucero went to the La Fe Clinic on July 12 and the staff sent her to R.E. Thomason Hospital's emergency room because she was jaundiced. Lucero was admitted and a consult was obtained from Dr. Saket Prasad, a Tech gastroenterologist. Lucero's liver function tests were markedly abnormal with elevated levels of bilirubin, alkaline phosphatase, AST and ALT, indicating an obstruction in the bile duct. On July 13, Dr. Prasad performed an endoscopic retrograde cholangiopancreatography (ERCP), which is a procedure to visualize the bile duct. Dr. Prasad diagnosed a common hepatic duct stricture or narrowing of the bile duct.¹ He placed a stent in the bile duct to open the stricture and allow bile to drain past the stricture. Lucero was discharged from Thomason on July 14.

During a telephone call to Dr. Prasad on July 30, Lucero complained of back pain. Dr. Prasad did not believe the pain was related to the ERCP procedure. On August 9, Lucero returned to Tech, but she did not see Dr. Prasad. The notes from that visit reflect that Lucero was continuing to experience pain. Lucero saw Dr. Lee again in August. Following the visit, Lucero wrote a letter complaining of Dr. Lee's comments:

To Whom it May Concern: I would like to request that a new doctor be assigned to me, because Dr. Lee (female) failed to understand the medical complaints I went to see her for and did not address them as valid. She began asking myself and my daughter (who always accompanies me at my clinic visits) if we had boyfriends, and further stating that we needed to spend time apart from each other and that we should see other people, which was most inappropriate. Insinuating that because my daughter inquires how I'm feeling that it was somehow causing me to have psychosomatic symtoms [sic] of a hypochondriac. On July 12, 2001 I went to La Fe clinic because (I was not getting the attention I was seeking from Dr. McGuire or Dr. Lee at Texas Tech) I was seriously jaundiced and was sent back to Thomason emergency by the doctor at La Fe Clinic, later that evening I was hospitalized after which I underwent an endoscopy procedure to insert a stent because I was found to have a stricture of my bile duct.

A CT scan was performed on August 16 and the radiologist concluded there was decreased attenuation around the porta hepatis, suggesting a tumor. Dr. Prasad reviewed the film with the radiologist and disagreed with that finding. He believed that the irregular attenuation was unrelated to the bile duct stricture. Lab tests revealed that Lucero's liver function tests had almost completely normalized. Dr. Prasad did not see Lucero again until September 4. His notes reflect that Lucero complained of diffuse body ache and mild abdominal pain, and her alkaline phosphatase reading was markedly high. His impression was that there was a biliary stricture in the common bile duct. He planned to perform another ERCP on October 11. However, Lucero's daughter, Kathy, called on September 11 and asked whether the ERCP could be moved to an earlier date because her mother was experiencing abdominal cramps and back pain. Dr. Prasad did not reschedule because he believed that Lucero's pain was possibly related to osteoporosis. When Kathy called him again and asked whether he minded if Lucero saw another doctor, he did not object.

Dr. Jesus Hernandez, a gastroenterologist, first examined Lucero on September 20. He initially concluded that there was a bile duct stricture but he believed she was stable. However, he admitted her to Providence Hospital that evening after she called to report fever and chills. Because she had a stent in the bile duct, he thought it possible that the stent was clogged and she might have an infection. When he performed an ERCP, he discovered that the stent was occluded and had migrated from where it had been placed by Dr. Prasad. Although stents commonly migrate, this case was unusual because the stent had migrated through the wall of the bile duct, causing a tear in the bile duct and a bile leak. He removed the existing stent and placed one in the right side of the bile duct. He was unable to place a stent in the left side due to the tear.

Following the ERCP, Dr. Hernandez went to Thomason Hospital to review the films. He concluded from the August 16 CT scan that the stent was not in the intrahepatic biliary system. He talked to Dr. Prasad, advising him of the ERCP results and his review of the August 16 CT scan. He told Dr. Prasad that the stent had migrated, that it was poking through the bile duct wall, and that there was a bile leak. Dr. Prasad responded, "Well, that's that." Lucero's condition continued to deteriorate and on September 25, Dr. Hernandez again tried, albeit unsuccessfully, to place a stent on the left side. He concluded that Lucero required a major biliary reconstruction procedure and referred her to Baylor Medical Center. Lucero was transferred to Baylor but the doctors were unable to repair her bile duct. She was returned to El Paso, developed sepsis, and died on December 20.

Dr. Hernandez testified that the bile duct stricture and bile leak led to a bacterial infection in the biliary system which spread into the liver. Because the infection could not be cleared, Lucero developed sepsis and died as a result. Dr. Hernandez believed that Dr. Prasad had correctly placed the stent. But since the August 16 CT scan revealed that the stent had migrated, it should have been removed and the nature of the problem investigated further. According to Dr. Hernandez, Dr. Prasad breached the standard of care by failing to take these actions.

Another expert witness, Dr. Mazen Jamal, testified that Dr. Prasad should have diagnosed the bile leak on August 16. In his opinion, Lucero probably had an infection at that time. If Dr. Prasad had treated it properly in August and September, Lucero would not have developed the liver abscesses and liver failure which led to her death.

On May 14, 2002, Tech received a letter from an attorney representing the Lucero plaintiffs alleging "negligent performance of gallbladder surgery on January 22, 2001 and negligent post-operative care that was the proximate cause of Mrs. Lucero's death on December 20, 2001." The plaintiffs filed suit on August 29, 2003, alleging medical malpractice and misuse of property under the Texas Tort Claims Act. A jury found that Tech's negligence proximately caused Lucero's death and awarded damages to Lucero's estate for her pain, mental anguish, and medical expenses. No damages were awarded to Larry and Rickey Lucero. The jury further found that Tech had notice of the claim not later than six months after the occurrence of the incident giving rise to the claim. The trial court denied Tech's motion for judgment non obstante veredicto, and entered judgment for the estate in the amount of $250,000. This appeal follows.

NOTICE

In Issue One, Tech complains that Lucero failed to provide the notice required by Section 101.101 of the Act. It contends that notice is jurisdictional and must be reviewed de novo.² Lucero responds that notice is not jurisdictional and that the jury's finding must be reviewed under the traditional legal sufficiency standard.³ We agree with Lucero.

The Statutes and The Amendment

Section 101.101 provides that:

(a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

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