ACCEPTED
06-16-00050-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
9/8/2016 5:39:10 PM
DEBBIE AUTREY
CLERK
NO. 06-16-00050-CV
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS TEXARKANA, TEXAS
9/9/2016 8:15:00 AM
FOR THE SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
AT TEXARKANA
LATASHA JAMES
APPELLANT
VS.
THOMAS W. KRUDEWIG CRNA, PLLC
APPELLEE
On appeal from the 71ST Judicial District Court of Harrison County, Texas
In Cause No.15-0689
________
APPELLANT’S BRIEF
________
Counsels of Record
William T. Hughey, Esq.
P.O. Box 2012
Marshall, Texas 75671
Hugheylaw@sbcglobal.net
Ph. 903-935-5550
Fax 866-823-7185
LIST OF PARTIES
APPELLANT
Latasha James
APPELLEE
Thomas W. Krudewig CRNA,PLLC
APPELLANT COUNSEL TRIAL LEVEL
William T. Hughey, Esq.
APPELLEE COUNSEL TRIAL LEVEL
Cooper & Scully. P.C
APPELLANT’S ATTORNEY ON APPEAL
William T. Hughey, Esq.
P.O. Box 2012
Marshall, Texas 75671
APPELLEE ATTORNEY ON APPEAL
Cooper & Scully, P.C.
900 Jackson St. Ste. 900
Dallas, Texas 75202
ii
TABLE OF CONTENTS
LIST OF PARTIES………………………………………………ii
INDEX OF AUTHORITIES……………………………………..v
STATEMENT OF THE CASE…………………………………..1-2
ISSUE PRESENTED…………………………………………….2
Is Plaintiff’s List A Informed Consent Cause of Action governed
by the Expert Report Requirement under to Chapter 74, Sec. 74.351
STATE OF FACTS………………………………………………2-5
SUMMARY OF ARUMENT…………………………………….5-6
ARGUMENT……………………………………………………..6-7
PRAYER………………………………………………………….8
CERTIFICATE OF SERVICE………………………………….8
CERTIFICATE OF COMPLIANCE……………………………..8
iii
INDEX OF AUTHORITIES
Cases Pages
Binur, M.D. v. Jacobo, 135 S.W.3d 646,
Supreme Court of Texas 2004………………………... 6, 7
Statutes
Chapter 74, Sec. 74.351……………………………….. 2
Chapter 74, Sec. 74.102………………………………..4,5
Chapter 74, Sec. 74.104………………………………..5
Chapter 74, Sec. 74.105………………………………..5
Texas Administrative Code § 601.2 (a)………………..5
6.02 of former article 4590i…………………………….6
iv
TO THE HONORABLE COURT OF APPEALS:
Appellant respectfully submits the instant brief. This is an appeal from The
71st Judicial District Court Harrison County Texas, Cause No.15-0689.
Statement of the Case
Appellant Latasha James on September 30, 2015, filed an Original Petition
against Defendant Thomas Krudewig, CRNA; pursuant to the Texas Chapter 74
Malpractice Act. (CR 5). On October 28, 2015, Defendant filed an Answer to
Plaintiff’s Original Petition
Appellant Latasha James on February 10, 2016 , filed an Amended Petition
against Defendant Thomas Krudewig, CRNA; (CR 16) The Amended Petition
contained all previous allegations against Defendant and added that On October 1,
2015 , Defendant’s Agent Thomas Krudewig a Certified Registered Nurse
Anesthetist (CRNA) rendered Health Care Service to Plaintiff Latasha James and
fail to obtain an Informed Consent Form signed by Plaintiff prior to the
Application of Anesthesia which is a List A procedure under §601.2 requiring
“Full Disclosure of Specific Risks and Hazards”. (CR 13)
Defendant Krudewig on March 3, 2016 filed a Motion to Dismiss based on
Plaintiff’s failure to file an Expert Report pursuant to Chapter 74, Sec. 74.351.(CR
1
24-26) On April 1, 2016 the court entered an order granting the request dismissal.
(CR 28). Plaintiff on May 2, 2016 filed a timely Notice of Appeal. (CR 33)
ISSUES PRESENTED
Is Plaintiff’s List A Informed Consent Cause of action governed by the Expert
Report Requirement under to Chapter 74, Sec. 74.351.
STATEMENT OF FACTS
Appellant Latasha James on September 30, 2015, filed an Original Petition
against Defendant Thomas Krudewig, CRNA; pursuant to the Texas Chapter 74
Malpractice Act. (CR 5). On October 1, 2013, Plaintiff Latasha James (herein
Plaintiff) presented for day surgery at Good Shepherd Medical Center, Marshall,
Texas. Plaintiff who was pregnant was schedule for a McDonald Cerclage, medical
procedure to be performed by Surgeon, Vanessa L. Miller, MD. Defendant’s
Thomas Krudewig a Certified Registered Nurse Anesthetist (CRNA) was
contracted to for the application of Anesthesia for the procedure. Defendant Agent
Thomas Krudewig CRNA utilized a Spinal Anesthesia on the person of Plaintiff
Latasha James. (CR 6) The surgery was successfully performed by Vanessa L.
Miller, M.D. (CR 6) Plaintiff was transported to the Post-Anesthesia Care Unit,
2
Plaintiff eventually was released to go home but was still feeling numbness in her
lower extremities which impacted her ability to walk. (CR 6) On October 2, 2015,
Plaintiff with the aid of her mother returned to Good Shepherd Medical Center,
Marshall entering and being triage in the Emergency Room. Plaintiff was,
shaking, had numbness, weakness in her lower extremities and an involuntary head
nodding. Plaintiff was eventually transported to Good Shepherd Medical Center
where she was admitted and hospitalized for a period of time. Plaintiff following
her released returned home with the following health problems and limitations (1)
Uncontrollable head movement with pain in neck,(2) Burning pain in her buttocks
(3) Tingling in her back and legs,(4) Loss of bladder control at times, (5) Pain in
her lower back,(6) Inability to walk without assistance and or use of walker,(7)
Difficulty with basic daily activities, (8) Need for assistance caring for son ,not
being able to carry him(9) Need for assistance with house work, cooking and self-
care, (10) Unable to walk up flight of Stairs and (11) Need for assistance getting
out of bed daily because of back stiffness. All of the health problems and
limitations did not exist prior to October 1, 2013 but now are a daily part of
Plaintiff’s life. (CR 6) Plaintiff furthered alleged that the symptoms that Plaintiff
was displaying on October 1st ,2nd and thereafter were consistent with Spinal
Hematoma. (CR 7) However Defendant Thomas Krudewig a Certified Registered
3
Nurse Anesthetist (CRNA) never stepped forwarded with the information and its
connection to the Spinal Anesthesia he applied on the person of Plaintiff Latasha
James. (CR 7)
Appellant Latasha James on February 10, 2016 , filed an Amended Petition
against Defendant Thomas Krudewig, CRNA; (CR 16) The Amended Petition
contained all previous allegations against Defendant and added that On October 1,
2015 , Defendant’s Agent Thomas Krudewig a Certified Registered Nurse
Anesthetist (CRNA) rendered Health Care Service to Plaintiff Latasha James and
Fail to obtain an Informed Consent Form signed by Plaintiff prior to the
Application of Anesthesia which is a List A procedure under §601.2 requiring
“Full Disclosure of Specific Risks and Hazards” and that the Defendant post-
surgery had knowledge that the symptoms that Plaintiff was displaying on October
1st ,2nd and thereafter were consistent with Spinal Hematoma and or Side effects
Risk associated with the administration of Spinal Anesthesia which dictates
Disclosure and Consent pursuant to List A under Chapter 601 (Texas Medical
Disclosure Panel Informed Consent) which implements the requirement of Texas
Civil Practice and Remedies Code, Chapter 74, Medical Liability, Subchapter C,
§74.102 (relating to Texas Medical Disclosure Panel)(CR 19-20)
4
Defendant Krudewig on March 3, 2016 filed a Motion to Dismiss based on
Plaintiff’s failure to file an Expert Report pursuant to Chapter 74, Sec. 74.351.(CR
24-26) On April 1, 2016 the court entered an order granting the request dismissal.
(CR 28). Plaintiff on May 2, 2016 file a timely Notice of Appeal. (CR 33)
SUMMARY OF ARGUMENT
Texas Civil Practice and Remedies Code Chapter 74, Medical Liability,
Subchapter C §74.102 (relating to Texas Medical Disclosure Panel) addresses the
necessity that Patients should be afford information associated with certain risk
which comes with health care procedures. The Texas Administrative Code Chapter
601: Informed Consent details those procedures and designates them as List A and
List B Procedures. List A Procedures are those which the Panel has identified and
listed as those which require full disclosure ; a failure to disclose create a rebuttal
presumption of a negligent failure to conform to the duty of disclosure set forth in
Sections 74.104 and 74.105. Plaintiff Informed Consent cause of action
associated with the Anesthesia procedure received by her is a List A Procedure
listed under Texas Administrative Code § 601.2 (a). It is Plaintiff’s position that
the Panel Designation of the procedure as a List A negates the needs for an Expert
5
Report on her negligence cause of action against Defendant based on his failure to
inform.
ARGUMENT
In Binur, M.D. v. Jacobo, 135 S.W.3d 646, Supreme Court of Texas 2004, the
Court provided a brief history on the concept of informed consent and in
particular the impact of a health care provider failure to provide Informed Consent
for those procedures designated as List A procedures the Binur Court stated:
A claim by a patient that a health care provider failed to obtain informed consent to
medical care or a surgical procedure is governed by section 6.02 of former article
4590i. While this case was pending on appeal, the Legislature amended parts of
article 4590i and recodified it in 2003 as chapter 74 of the Texas Civil Practice and
Remedies Code. Former section 6.02 is now section 74.101 of that Code. Because
former section 6.02 continues to govern this case, and the court of appeals' opinion
as well as the parties' briefing cite it, we will cite to that section rather than its
recodification.
Former section 6.02 says:
In a suit against a physician or health care provider involving a health care liability
claim that is based on the failure of the physician or health care provider to
describe or adequately to disclose the risks and hazards involved in the medical
care or surgical procedure rendered by the physician or health care provider, the
only theory on which recovery may be obtained is that of negligence in failing to
disclose the risks or hazards that could have influenced a reasonable person in
making a decision to give or withhold consent.
The court of appeals correctly noted that the Medical Liability and Insurance
Improvement Act, embodied in former article 4590i, created the Texas Disclosure
Panel to promulgate a list, known as List A, that identifies procedures for which
some disclosure is required and the risks or hazards of those procedures. If a health
care provider discloses the risks or hazards identified in List A for a procedure,
6
there is a rebuttable presumption that the health care provider was not negligent in
obtaining informed consent. Conversely, failure to disclose the risks or hazards
identified in List A for a particular procedure will create a rebuttable presumption
that the health care provider was negligent in failing to disclose those risks or
hazards. (Binur at 654)
The Plaintiff has clearly articulated in her First Amended Petition an informed
consent violation associate with defendant’s failure to inform her with the risk
associated with the Anesthesia procedure received by her ; Anesthesia is List A
Procedure listed under Texas Administrative Code § 601.2 (a). In this context that
the “Texas Medical Disclosure Panel” has already established the failure to
inform as to this procedure create a rebuttable presumption that the health care
provider was negligent in failing to disclose those risks or hazards. In light of the
presumption Plaintiff would tender to the Court that the rebuttable presumption
that the health care provider was negligent in failing to disclose those risks or
hazards negates the necessity for an Expert Report. In keeping with this argument
although Plaintiffs Malpractice claim is not actionable ,Plaintiff’s Negligent
Failure to Inform claim is still viable requiring a remand to the matter to the district
court for resolution of the pending “Failure to Inform Cause of Action”.
7
PRAYER
Appellant prays that she be granted the relief requested on the issue
presented and the case be Remanded to the Trial Court to resolve the Informed
Consent Cause of Action.
/s/ William T. Hughey
Counselors for Appellant
CERTIFICATE OF SERVICE
Undersigned counsel hereby certifies that a true and correct copy of the
foregoing Appellant’s Brief was served via E-Serve on all Attorney of Record.
/s/ William T. Hughey
CERTIFICATE OF COMPLIANCE
Undersigned counsel certifies the contents of this brief comply with the Tex
.R. App. P. 9.4(i)(3). The number of words in this brief, as calculated by MSWord
Count and excluding portions as provided by Tex. R. App. P 9.4(i)(1) is 1,684.
/s/ William T. Hughey
8