Did amputation & death result from failure to monitor Pt.?

CASE ON POINT: RGV Healthcare Associates, Inc. v. Estevis, 2009-TX-0708.330 (7/2/2009)-TX

CASE FACTS: On June 1, 2005, Santos Marroquin, a ninety-three-year-old woman, was admitted to RGV Healthcare (RGV) for rehabilitation from a post-stroke condition. Santos suffered from diabetes, high blood pressure, coronary artery disease, and congestive heart failure. On the morning of June 4, 2005, nurses discovered that Santos' lower right leg was cool and did not have a pulse. At noon, Santos was transferred to the ER at Rio Grande Regional Hospital, where she underwent an embolectomy to remove an embolism that had developed in her right leg. During the procedure, the surgeon discovered that Santos' right leg was pre-gangrenous and amputated it above the knee. On June 10, 2005, Santos' lower left leg was noted to be cool, but no further surgical intervention was ordered. Santos then developed atrial fibrillation, a fever, and a urinary tract infection. Santos died on June 13, 2005. On March 26, 2007, the Marroquins sued RGV, Dr, J. Michael Koch, Registered Nurse Pablo, and Certified Nursing Assistant Gracie. Ofelia Estevis sued as personal representative of the decedent's estate. They alleged that RGV was: (1) directly liable for the decedent's death; (2) vicariously liable, under the doctrine of Respondeat Superior, for the negligence of RN Pablo and CNA Gracie, and (3) liable for negligent hiring and supervision (collectively "the Marroquins' liability theories"). RGV answered with a general denial, a plea of limitations under the Texas Civil Practice Act and asserted various affirmative defenses. On July 24, 2007, the Marroquins tendered an expert report by Dr. Lige Rushing, who, after reviewing the decedent's medical records from RGV and Rio Grande Hospital, opined that: The standards of care for long-term care facilities, (such as RGV) were required it to have in place, were non-existent, and that RGV and its nursing personnel failed to provide the level of care and treatment that a reasonable, prudent and similar facility would provide under the same or similar circumstances. Further, it was alleged that in order to meet that standard, the decedent should have had a daily body check, including an examination of the upper and lower extremities. The expert opined that if the arterial occlusion had been discovered earlier, more likely than not, the leg could have been saved, and that the failure of the nurses to appropriately monitor the decedent resulted in their failure to detect the arterial thrombosis at or near the time it occurred. RGV moved to dismiss the complaint. The trial court denied its motion. RGV appealed.

COURT'S OPINION: The Court of Appeals of Texas, affirmed the order of the trial court denying the motion to dismiss and finding for the Marroquins. The court addressed, inter alia, the issue of whether RGV waived its challenge to the causation element because its objection did not reference Dr. Rushing's report at all. Instead, the court noted, RGV assailed the adequacy of Dr. Rushing's report by referring to an expert report on a different patient's maladies. At oral argument, the Marroquins suggested that the objection was insufficient and did not preserve the issue for the courts's review on appeal because it erroneously referenced a different expert report. The court rejected RGV's contention that RGV's objection was properly preserved. The court noted that this belied the fact that RGV had the burden to articulate an objection and assumed that, by responding to what RGV considered a generic, boilerplate objection, the Marroquins converted an incoherent objection into a sufficient one.

LEGAL COMMENTARY: Unfortunately, the appellate court's opinion fails to give an in-depth treatment to what was the crux of the case, i.e., the failure of the RGV's nursing staff to meet the appropriate standard of care. There is no doubt that the failure of the nursing staff to examine the upper and lower extremities of a post-embolectomy surgery patient is inexcusable. Not only should RGV have had definitive protocols requiring daily examination, but even if it failed to articulate such requirements in its protocols, surely an Registered Nurse, as well as a Certified Nursing Assistant knew or should have known of the necessity that a patient, such as the decedent, had to be checked on daily. It is interesting to note that the Marroquins, in addition to their allegations of negligence, and failure of the nursing staff to meet the applicable standard of care, alleged that RGV was negligent in both hiring and retaining the persons in question. Was this nursing home just a warehouse in which to store people until they expired? Was the nursing staff merely hired hands to man the facility, or were they truly dedicated nurses, who not only cared for their patients, but took pride in their work and the quality of care given their patients. We would all like to think that the latter is the case, but all too often the former proves to be the more likely the case. Nursing homes and nursing home nurses should give their patients the type of care they would want for their loved ones.