Thompson v. Stolar
| Decision Date | 08 October 2014 |
| Docket Number | No. 08–11–00264–CV.,08–11–00264–CV. |
| Citation | 458 S.W.3d 46 |
| Parties | Maria G. THOMPSON/Luis Marioni, D.C., Appellant, v. Jaime STOLAR, M.D., Alivio Medical Center, Alivio Treatment Centers, P.A. and Luis Marioni, D.C./Maria G. Thompson, Appellees. |
| Court | Texas Court of Appeals |
458 S.W.3d 46
Maria G. THOMPSON/Luis Marioni, D.C., Appellant
v.
Jaime STOLAR, M.D., Alivio Medical Center, Alivio Treatment Centers, P.A. and Luis Marioni, D.C./Maria G. Thompson, Appellees.
No. 08–11–00264–CV.
Court of Appeals of Texas, El Paso.
Oct. 8, 2014.
Jaime Stolar M.D., El Paso, pro se.
Gary A. Norton, Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, for Appellees.
John Grost, El Paso, for Appellant.
Before McCLURE, C.J., RIVERA (not participating), and RODRIGUEZ, JJ.
OPINION
ANN CRAWFORD McCLURE, Chief Justice.
This is a multi-party appeal from a judgment in a medical and chiropractic malpractice case. Maria G. Thompson sued Jaime Stolar, M.D., Luis Marioni, D.C., and Alivio Medical Center and Alivio Treatment Centers, P.A. (collectively referred to as “Alivio”) due to knee injuries allegedly caused by treatment she received. For the reasons that follow, we reverse in part and affirm in part.
FACTUAL SUMMARY
Thompson's 1999 Accident—The Initial Knee Injury
On December 10, 1999, Maria G. Thompson was involved in an automobile accident
in which she sustained injuries to her right knee and ankle. As a result, she underwent multiple arthroscopic surgeries on her right knee. The first surgery was performed on February 29, 2000. According to her medical report, Thompson did not feel as though this first surgery helped much. Due to continued pain, Thompson underwent her second surgical procedure on October 10, 2000.
At some point thereafter, Thompson's orthopedic surgeon, Dr. Dickason, released her from his care. Thompson then began receiving chiropractic care from Dr. Crawford, D.C., who treated her with physical therapy and subsequently referred her to Dr. Hernandez, M.D. for an orthopedic evaluation. Thompson complained to Dr. Hernandez of pain in her knee, difficulty bending, kneeling or squatting, some pain with standing and walking, and occasional swelling. After several months, Thompson continued to have severe pain with no improvement and Dr. Hernandez recommended another arthroscopic surgery.
In June 2001, Dr. Hernandez performed a third arthroscopic surgery on Thompson's right knee. Approximately a week after surgery, Dr. Hernandez saw Thompson for a follow-up appointment. While Thompson was doing very well, Dr. Hernandez told her that she was “going to get progressive degenerative changes in her right knee” and that she would eventually need a total knee replacement.1
Even after the three surgeries, Thompson continued to experience pain in her knee. At trial, Thompson testified that prior to the 1999 accident she was a runner and loved to dance. However, after the accident and her initial surgeries, she could no longer run and had trouble climbing up and down the stairs. While Thompson admitted that the initial injury limited her abilities, she also testified that from 2000 through 2005 she was able to continue dancing and exercising. She continued working from 2000 to 2005. In March 2005, Thompson changed doctors and sought chiropractic care from Dr. Luis Marioni, D.C.
Thompson's Initial Knee Infection and Spontaneous Knee Fusion
Initial Interactions with Dr. Marioni, Dr. Stolar, and Alivio
Thompson first visited Dr. Marioni on March 30, 2005, because she wanted to receive physical therapy. Dr. Marioni diagnosed Thompson as suffering from severe osteoarthritis. Because her condition could not be treated or improved with chiropractic care, Dr. Marioni told her that there was nothing he could do. Dr. Marioni then referred Thompson to Dr. Jaime Stolar, M.D. for pain management.2 Dr. Stolar was a medical doctor who leased office space from Alivio Treatment Centers, P.A., an entity owned by Dr. Maroni. The two men had individual offices in the same building, but shared a receptionist. Both men testified that their practices were independent. There was no employment agreement between Dr. Marioni and/or Alivio and Dr. Stolar. Dr. Marioni
admitted that he made several referrals to Dr. Stolar. The patient medical records for Dr. Stolar and Dr. Marioni were also kept together, thereby providing each doctor with the ability to access the other's patient records.
Thompson's first appointment with Dr. Stolar took place on May 11, 2005. According to Dr. Stolar, Thompson explained to him that she did not want to undergo surgery for a knee replacement and instead wanted to receive pain management therapy. Dr. Stolar recommended injecting Thompson's knee with a steroid to relieve the pain. According to Dr. Stolar, he explained to Thompson that while the injections may temporarily relieve her pain, her problem could only be solved by surgery. Initially, Thompson declined to have the injections because she had experienced problems after receiving an earlier injection from Dr. Hernandez. But in August 2005, Thompson returned to Dr. Stolar and at this point, she agreed to try the injection therapy. The injection helped with her pain, but it returned approximately a month later.
On September 30, 2005, Dr. Stolar gave Thompson a second injection. Once again, it temporarily relieved her pain. However, the relief period was shorter than after the initial injection. In November 2005, Thompson returned to Dr. Stolar complaining of increased pain. According to Thompson, her job required that she stand for long periods of time and her whole leg was swollen. Thompson requested another injection, but Dr. Stolar told her that she had to wait until December. On December 19, Thompson returned and received her third and final injection.
On January 16, 2006, Thompson visited Dr. Marioni complaining of severe pain in her knee.3 Dr. Marioni noted that her knee was warm, sweaty, and swollen and Thompson was complaining of pain which she described as a level of “9” on a scale of “10”. At that time, Thompson was unable to work. Thompson claimed Dr. Marioni told her that he thought her knee was infected. In contrast, Dr. Marioni testified that he did not suspect an infection. (RR III 79–80; 118) While he admitted swelling and pain could be signs of infection, the knee was no more swollen than when he had first seen Thompson.4 At Thompson's request, Dr. Marioni then referred her to Dr. Hernandez. January 16th was the first time Dr. Marioni had seen Thompson since he had referred her to Dr. Stolar for pain management.
Diagnosis of Knee Infection and Subsequent Spontaneous Knee Fusion
Thompson was originally scheduled for an appointment with Dr. Hernandez on January 26, 2006. Due to severe pain, she called his office on January 23rd to move up the appointment. The following morning Thompson was seen by Dr. Zaltz. Dr. Zaltz withdrew fluid from the knee and diagnosed the infection. That same day, Thompson had incision and drainage procedures performed.
On March 14, 2006 Thompson presented at the emergency room complaining of pain and a swollen knee. She was held overnight for observation and discharged the following day. In March and April 2006, Dr. Hernandez performed additional procedures to drain fluid from the knee.
Thompson eventually informed Dr. Hernandez that she would like to undergo total knee replacement surgery. He was reluctant to perform the procedure and referred her to Dr. Richard Westbrook, another orthopedic surgeon. Thompson first saw Dr. Westbrook on April 11, 2007. By this time, she had been free of infection for approximately nine months but her knee had fused. In other words, she effectually had one piece of bone extending from the hip to the ankle. Due to the fusion, the knee replacement surgery would involve “taking down” the knee fusion. Essentially, the procedure involved cutting the fused bones where the knee joint used to be and inserting a totally new knee joint. Dr. Westbrook explained the complications associated with the procedure, including the risk of another knee fusion. Thompson was insistent upon having the surgery, despite the risks, and surgery was performed on August 24, 2007. Thompson had mobility in her leg following the surgery and in fact returned to work in September 2007.
Subsequent Injurious Falls and Second Knee Infection and Surgical Knee Fusion
Two Falls in October 2007
In October 2007, Thompson tripped and fell. Dr. Westbrook saw Thompson following the incident and while she was able to cross her legs, she was unable to extend her knee and straighten out her leg. Dr. Westbrook determined that Thompson sustained a hyperflexion of the knee and suffered a rupture to her patella tendon and a portion of her quadriceps.
Later the same month, Thompson fell a second time while attempting to step out of her daughter's vehicle. She scraped her leg against the asphalt, causing her surgical wound...
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