Thi of Tex. At Lubbock I Llc v. Perea

• Decision Date: 28 July 2010
• Docket Number: No. 07-08-0359-CV.,07-08-0359-CV.
• Citation: 329 S.W.3d 548
• Parties: THI OF TEXAS AT LUBBOCK I, LLC, d/b/a Southwest Regional Specialty Hospital, Appellant, v. Mario PEREA, Individually and as Representative of the Estate of Jacob Perea, Deceased; Max Perea; Tony Perea; and George Perea, Appellees.
• Court: Texas Court of Appeals

329 S.W.3d 548

THI OF TEXAS AT LUBBOCK I, LLC, d/b/a Southwest Regional Specialty Hospital, Appellant,

v.Mario PEREA, Individually and as Representative of the Estate of Jacob Perea, Deceased; Max Perea; Tony Perea; and George Perea, Appellees.

No. 07-08-0359-CV.

Court of Appeals of Texas,

Amarillo,

Panel E.

July 28, 2010.

R. Brent Cooper, Diana L. Faust, Matthew C. Kawalek, Michelle E. Robberson,Cooper & Scully, PC, Dallas, TX, Lori D. Proctor, Johnson, Spalding, Doyle, West & Trent, Houston, TX, for Appellant.

Amy K. Witherite, Eberstein & Witherite, L.L.P., Deborah G. Hankinson, Rick Thompson, Hankinson Levinger LLP, Dallas, TX, for Appellees.

Susan C. Cooley, Schell Mitchel & Cooley, L.L.P., Addison, TX, for Real Party in Interest.

Before CAMPBELL, PIRTLE, JJ. and BOYD, S.J.¹

OPINION

PATRICK A. PIRTLE, Justice.

Appellant, THI of Texas at Lubbock I, LLC, (THI), d/b/a Southwest Regional Specialty Hospital (Southwest Hospital) appeals from a judgment entered following a jury trial in a medical malpractice action seeking wrongful death and survival damages in favor of Appellees, Max Perea, Mario Perea, Tony Perea, and George Perea (collectively Perea), and the estate of their deceased father, Jacob Perea (Jacob). In support, THI asserts: (1) the trial court erred by denying THI's proposed jury instruction on negligence; (2) the trial court erred by permitting Appellees to amend their petition during trial to assert an action for negligent credentialing/hiring; (3) the trial court erred by granting judgment on Appellees' negligence theories; (4) Appellees' evidence of gross negligence was legally and (5) factually insufficient; (6) the trial court erroneously excluded THI's testimony regarding an in-house investigation into the circumstances of Jacob's death; and (7) the trial court failed to apply certain statutory liability caps to the damage awarded in Appellees' favor.² We reverse the trial court's judgment and remand the case for further proceedings.

Background

In December 2005, Appellees filed a medical malpractice action against THI, Pharmasource Healthcare, Inc. and Omnicare Inc., d/b/a Pharmasource Healthcare, Inc. (collectively Pharmasource), seeking wrongful death and survival damages. ³ Appellees' amended petition alleged that Southwest Hospital's nurses were negligent and grossly negligent in administering two fatal doses of Ativan to Jacob despite information known to Southwest Hospital's staff and located in his medical records indicating he had an allergy to Ativan. ⁴ Appellees asserted THI and Pharmasource acted with negligence, gross negligence, and malice.

I. Trial Amendment

During their case-in-chief, Appellees elicited testimony from Leonard Espinoza, a former charge nurse at Southwest Hospital who allegedly wrote an unauthorized order prescribing Ativan for Jacob, that hehad, prior to being employed by THI at Southwest Hospital, similarly administered Ativan to a patient without a physician's authorization and was disciplined by the Colorado Board of Nurse Examiners. Afterwards, Appellees sought to amend their original petition to allege THI was negligent for credentialing or hiring Espinoza because "it knew or should have known [Espinoza] was incapable of providing safe and competent care to" Jacob. The trial court permitted the amendment.

II. Evidence at Trial-Medical Malpractice Claim

In 2004, Jacob was a seventy-eight year old widower with four sons—Tony, George, Max, and Mario. He had a history of heart disease complicated by respiratory issues and diabetes. Nevertheless, until he experienced a fall in November 2004, Jacob spent his time maintaining seventeen acres of land owned by his sons. During the summer, he arose at 5:00 a.m. to mow and shred the land, quit at 10:00 a.m. due to the heat and then resumed at 6:00 p.m. He cleaned his own home and did not regularly use a walker or cane. He performed these tasks despite intervening gallbladder and heart surgeries.

In April 2004, Jacob was admitted to Covenant Medical Center in Lubbock, Texas, to have his gallbladder removed. While at Covenant, Jacob experienced confusion and was sedated with morphine and Ativan. Two days later, his cardiologist noted Jacob's "confusion [was] worse" and that "he may be over-sedated." Later, the same day, his cardiologist noted Jacob "was still confused, too sedated," and suspended the use of Ativan. The following day Jacob's neurologist noted Jacob was sitting in a chair, quite alert and attentive but still confused. His neurologist also noted that "holding ... other potentially sedating meds is also working." Two days after the medication change, Jacob was discharged.⁵ Several days after returning home, Mario observed that his father's "mind was straight."

In May, Jacob was again seen at Covenant complaining of abdominal pain. On admission, his physical exam showed he was awake, alert, and able to answer questions reasonably well. His final diagnosis prior to discharge was acute renal failure. The discharge also stated Jacob was "not in clinic for congestive heart failure, medications adjusted, no episode of chest pain or shortness of breath, had baseline chronic renal insufficiency."

In June, Jacob returned to Covenant complaining of confusion and chest pain. During a consultation, his doctor noted Jacob had received Ativan the night before for agitation and appeared alert. His doctor opined that Jacob "likely has baseline dementia [with] secondary decompensation due to medical problems, change in environment, etc." His doctor subsequently issued an order to avoid Ativan. Jacob was later discharged home with continuation of home medications. His discharge summary indicated "[n]o acute interaction planned ... cardiac status-wise."

In July, Jacob underwent a successful coronary bypass surgery. Within weeks after the surgery, Jacob was driving and attending to his normal schedule. His doctors told Mario that morphine, prescribed for Jacob in the hospital, was causing him to be disoriented at home and Ativan was a major problem for Jacob. His discharge summary indicated therewere no "operative complications, able to discharge home—stable condition."

In September, Jacob was admitted to Covenant suffering from shortness of breath. His doctor recommended Jacob continue his current heart medications while considering dialysis for chronic renal failure. Jacob was discharged three days later. His discharge summary stated "nothing acute, medications, home with family." In October, Jacob was admitted with complaints of shortness of breath. He was treated and "discharged in good condition."

In early November, Jacob was admitted to Covenant complaining of abdominal pain. He had missed his regularly scheduled dialysis and was feeling poorly with fluid overload. After a consultation, his doctor diagnosed Jacob as suffering from "congestive heart failure secondary to fluid overload." He recommended Jacob be discharged after dialysis and continue his current heart medications.

In late November, Jacob returned to Covenant complaining of a fall. His vital signs were stable. A CT scan showed a slight cervical spine fracture and he was placed in a collar. On examination, his doctor noted he was a "well-developed and well-nourished male who [was] sedated but arousable and follow[ed] commands." His doctor recommended Jacob undergo an MRI but recommended the test be delayed until the next day because Jacob was "too sedated [and] his myonclonus is too jerky for his MRI; at this time." His overall treatment plan was to admit Jacob, perform dialysis, resume his medication, and closely monitor.

During a discussion on December 1, Jacob's family informed Covenant's medical staff that Jacob became confused on Ativan. The staff then listed Ativan as an allergy for Jacob and notified the pharmacy. On December 2, Dr. C.J. Wheeler wrote an order indicating Jacob was sensitive to "Ativan/Benzodiazepines." For the MRI, he ordered that Jacob be sedated with Demerol and Versed ⁶ with an antidote available in case of over sedation.

Prior to the MRI, Jacob was given Versed to sedate him while the MRI was being performed. Four hours later, Jacob went into cardiac arrest. He was intubated and placed on a breathing machine or ventilator. Naidu Chekuru, M.D., performed a consultation and noted that "[a]n MRI was planned; as [Jacob] was too restless I believe they gave him Ativan which led to cardiopulmonary arrest" and "[h]e was required to be intubated and ventilator support." A Covenant charge nurse's report showed Jacob was allergic to morphine and Ativan. The allergies were also listed in his Restraint Assessment, Physician Order and Documentation Protocol: "Allergies: Morphine/Ativan."

On December 12, Jacob was discharged from Covenant and transferred to Southwest Hospital, a skilled nursing facility, under the care of Kenneth Michael Rice, M.D. The narrative summary indicated Jacob, on admission, was "neurologically intact, stable cardiac evaluation." Recommendations included a neck brace to immobilize Jacob's neck and continuation of antibiotics. The discharge summary noted that Jacob was "released in stable condition" and he was "ALLERGIC TO LORAZEPAM ⁷ AND MORPHINE."

On December 15, Nurse Jahomo admitted Jacob to Southwest Hospital at approximately 4:40-4:45 p.m. Jacob's original chart from Covenant indicated he had allergies to morphine and Ativan. In addition, Covenant's patient transfer form listed Ativan in the area related to drug sensitivity. Nurse Jahomo filled out a nursing assessment form indicating Jacob was allergic to Ativan, placed an allergy sticker on his chart and an allergy bracelet on his wrist.⁸ On Dr. Rice's admitting orders, Nurse Jahomo wrote that Jacob had allergies to morphine and Ativan.⁹ She testified that, from the information she initially put in the medical records, every nurse who later cared for Jacob on every shift should have known he was allergic to morphine and Ativan.

That evening, Dr. Rice received a...