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Texas law requires support of an expert witness for these health care liability claims to proceed Contact Now

Hospital administration, nursing supervisor negligence can cause patient injuries

Texas law requires support of an expert witness for these health care liability claims to proceed

In my experience, medical malpractice cases typically involve mistakes by more than one healthcare provider. In other words, it’s often the case that one medical error isn’t enough to seriously injure the patient. It usually requires multiple mistakes by multiple defendants.

This reminds me of our representation of a client in a medical malpractice suit against Plano, Texas neurosurgeon Christopher Duntsch, M.D. Dr. Duntsch was involved in several serious medical malpractice and wrongful death lawsuits in the Dallas area at once. He is said to be the first surgeon to be imprisoned for his operating room conduct. Course, he became most infamous as the antagonist on the Dr. Death podcast.

As a former hospital administrator, I would describe the multiple layers of errors that injured our client to be a system failure. Our neurosurgery expert believed, as did experts in multiple other cases, that Dr. Duntsch was incompetent as a neurosurgeon and made multiple mistakes that cause patient injuries.

After our client’s surgery, he was sent to the recovery room (post-anesthesia care unit/PACU), where registered nurses quickly became aware that he could not feel his lower extremities. Our nursing expert believed that he failed to advocate for immediate medical attention. It turned out that our client had a bleed or hematoma that was compressing his spinal cord. He needed emergency surgery to evacuated and decompress the pressure on his spinal cord before it caused his ultimate injury, quadriplegia.

Then, of course, there were concerns about the hospital administration’s decisions to admit Dr. Duntsch to its medical staff and keep him there as complications and injuries started piling up. Unfortunately, that was not a viable theory for us to pursue under Texas law because it requires a showing of malice by the credentialing committee. Yet, at the same time, Texas law nonsensically keeps the records and proceedings of the credentialing committee privileged.

In other cases, though, there is a valid legal theory to go after the hospital or facility.

For example, we are currently pursuing a medical malpractice wrongful death lawsuit in a Dallas County district court involving the death of a healthy man in his 50s who went to have a CT scan with contrast at a freestanding imaging facility. He had a violent reaction to the contrast media and died a short time later.

There is no evidence in the imaging center’s medical records that a physician was present and immediately available to respond to an emergency situation like this. That is the case even though American College of Radiology standards require this. Our medical experts believe that if a doctor had been present and was notified of the patient’s CT contrast anaphylaxis, it would have led to immediate administration epinephrine, which would’ve saved his life.

In that lawsuit, we are alleging that the imaging center was negligent by failing to ensure that a radiologist or other physician was physically present in immediately available to respond to emergency. This is required by the standard of care any time contrast media is administered to a patient because of the known risk of a reaction.

Administrative experts

As with any healthcare liability or medical malpractice claim in Texas, a plaintiff that sues a facility for administrative negligence must serve one or more expert reports from qualified individuals early in the litigation that address the standard of care, how it was violated, and how the errors caused harm.

When considering whether a plaintiff’s expert reports are good faith effort to meet the statutory requirements, courts must decide whether an expert is qualified.

In every case, a plaintiff must have at least one physician expert to give an opinion on causation. Under Texas law, no one but a doctor can give this type of testimony.

The qualification of a physician to testify about another conduct of another physician or healthcare provider is based on that physician’s experience and expertise in the specific care relevant to the case. The same is true for nurses and other healthcare providers.

When it comes to violations by the standard of care by hospital administrators or leadership, a case out of the Dallas Court of Appeals provide some useful information. The case is styled Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App.—Dallas 2011, no pet.). You can read the opinion here.

In the Hollingsworth case, administrative nurses (in supervisory roles) objected to the sufficiency of the plaintiff’s expert report from a non-nurse, non-physician administrative expert. The expert’s criticisms included, among other things:

• Failing to ensure that the nurses, anesthesia technicians and other administrative personnel were adequately trained, tested, and re-trained to ensure clinical and administrative competencies.

• Failing to ensure the attendance of appropriately competent anesthesia personnel for a patient with a history of difficulty intubation and high anesthesia risk.

• Failing to have and enforce appropriate policies and procedures.

• Failing to operationalize the policies in place and to ensure they were followed, including but not limited to: organization-wide Competency Plan rules; organization-wide Patient Assessment rules; Admission: Patient rules; Pre-Admission of Patient rules; Surgical Outpatient rules; and Surgery Scheduling rules.

The administrative nurses alleged that the expert witness was not and had never been a healthcare provider. The Dallas Court of Appeals rejected this argument, noting that a healthcare provider includes a manager or employee of the health care institution. Additionally, the court noted that the statutory definition of “health care” includes any act performed by health care provider if it is related to a patient’s medical care, treatment, or confinement. Finally, the court also relied on language from Texas Civil Practice & Remedies Code Section 74.402(a) that expands the definition of practicing healthcare to include those who teach or consult in the field.

In finding that the plaintiff’s proposed expert was competent and qualified, the court noted that the expert was a management in the health care industry. The court ruled that a management consulted in the health care industry is a field involving the same type of care as administrative nurses, specifically hospital management. Significantly the court relied on statutory language that does not require an expert to be practicing in the same field, but only in the field of practice involving the same kind of care.

The court of appeals also found it significant that the expert had graduate training as a hospital administrator and had significant past experience as a hospital administrator in a supervisory capacity. The court also observed that the expert continued to be involved in hospital administration through consulting work.

If you’ve been seriously injured because of poor medical or hospital care in Texas, then a top-rated experienced Houston, Texas medical malpractice lawyer can provide you competent advice on how to investigate your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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