Did CRNA get off the hook in this case?
ISSUE: Tonsillectomies are usually routine procedures. However, when something goes wrong both nurses and physicians are often sued. Did the CRNA in this case get off the hook?
CASE FACTS: On March 27, 1998, Kaelyn Martinez, age 3, was scheduled for a tonsillectomy/adenoidectomy. The night before the procedure, the child's mother called the Val Verde Regional Medical Center, the hospital at which the operation was scheduled, and explained to the head nurse that Kaelyn had a temperature and was congested. Because she had been told that Kaelyn was not to have any fluids the night before surgery, she asked the nurse what she should do. The nurse told her to give Kaelyn liquid Tylenol and apple juice. The next morning, Kaelyn was admitted to the hospital for the procedure. When asked whether the child had consumed any liquids the night before, the child's mother responded that she had given the child Tylenol and apple juice in accordance with the head nurse's instructions. Kaelyn's mother told the nurse the Kaelyn was still congested. The nurse gave Kaelyn another dose of liquid Tylenol. The surgeon then proceeded with the tonsillectomy/adenoidectomy. After surgery, Kaelyn experienced "pulmonary complications" and was transferred to the intensive care unit at another hospital. On June 8, 2000, Kaelyn's parents brought suit (individually and as parents of Kaelyn), against the Val Verde Regional Medical Center, the surgeon, Dr. Allen Anderson, and the Nurse Anesthetist, Duane Riegel. Nurse Riegel filed a motion to dismiss the case against him, arguing that the expert medical witness report which the plaintiffs were required to file was deficient. The trial court denied Nurse Riegel's motion and granted the plaintiffs additional time to file a second report. The plaintiffs filed a second report. Nurse Riegel moved for reconsideration of his motion to dismiss. The trial court denied Nurse Riegel's motion to dismiss. On October 25, 2001, the hospital filed a plea to the jurisdiction, arguing that the plaintiffs had failed to comply with the Texas Tort Claims Act's six-month notice requirement. The trial court dismissed the plaintiffs' claims against the hospital. The trial court then severed the claims against the hospital from the claim against Nurse Riegel. The plaintiffs appealed the order of the trial court. Nurse Riegel filed a motion to reconsider the sufficiency of the plaintiffs' expert medical report. The trial court granted Nurse Riegel's motion to reconsider, and denied the plaintiffs' motion for additional time to amend the report. The plaintiffs appealed.
COURT'S OPINION: The District Court of Appeals of Texas affirmed the judgment of the trial court. The court rejected the plaintiffs' contention that they were denied their constitutional right to equal protection under the law by allowing Nurse Riegel being allowed a "second bite at the apple" while giving them only one opportunity to present an adequate medical report. The court noted that the plaintiffs were given a second opportunity to present an expert report. The court observed that after the trial court denied Nurse Riegel's initial motion to dismiss, the plaintiffs were allowed to file a second report.
LEGAL COMMENTARY: The court was influenced by public policy concerns relative to the adverse impact that an increasing number of health care liability claims had "caused a serious public problem in the availability and affordibility of adequate medical professional liability insurance." Noting that the Texas Legislature had enacted remedial legislation to address the issue, part of which encompassed the requirement that prospective plaintiff's meet certain designated standards as to notice and obtain expert medical opinion in support of their claims for medical malpractice. The court was confident that it was deciding the case in accordance with legislative intent and public policy. Editor's Note: Most state legislatures, and the public at large, have bought into the concept that victims of medical malpractice must meet certain requirements before they have standing to file suits for medical malpractice. However, many responsible persons, both within and without the health care professions, firmly believe that more emphasis should be placed on fail-safe adherence to protocols and procedures which are in strict compliance with the applicable standards of care. All too often, targets of medical malpractice suits have no one to blame but themselves. Notwithstanding however careless, negligent or indifferent a health care provider may be, victims of their carelessness, negligence and indifference must comply with all of the requirements set forth in state laws in order to have standing to proceed in a suit against even the most careless, negligent health care providers., however meritorious their cases might be. Many have argued, albeit unsuccessfully, that this is in violation of the constitutional requirement for equal protection of the law which is an integral part of all state constitutions as well as the Constitution of the United States of America. Should health care providers be given a special status, which amounts to something more than equal protection under the law?
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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|Author:||Tammelleo, A. David|
|Publication:||Nursing Law's Regan Report|
|Date:||Aug 1, 2006|
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