Salais v. Texas Department of Aging & Disability Services

323 S.W.3d 527, 2010 Tex. App. LEXIS 6259, 2010 WL 3036482
Court of Appeals of Texas·Decided August 4, 2010·No. 10-09-00155-CV·Published·Cited by 29 cases

Opinions

OPINION

REX D. DAVIS, Justice.

Ana Maria Gonzalez Salais appeals the trial court’s order dismissing her healthcare liability claim against the Texas Department of Aging and Disability Services (TDADS).

Salais’s live petition alleges that her son Ruben Gonzalez was a patient at the Me-xia State School, a TDADS facility, because of his developmental disability. Late one evening (after midnight), Ruben had refused to go to bed and was then physically restrained by Sheri Thornton and Charles Korn, two TDADS employees. After Joel Thomas, a third employee, arrived, they placed Ruben on a restraint board. Sue Sanderson, a TDADS nurse, was called to the scene and found Ruben pale with no pulse or blood pressure. Sanderson was unable to resuscitate Ruben. An automated external defibrillator (AED) was employed, but it was not used to shock Ruben. Paramedics arrived and their monitor showed a flat line and no cardiac rhythm. Ruben was taken to a hospital, where he was pronounced dead.

Salais also pleads:

In the Prevention & Management of Aggressive Behavior Course Synopsis allegedly provided by Defendant Mexia [State School] to its employees, employees are warned that “[e]xtreme care must be exercised during any horizontal restraint to insure that the person’s ability to breathe is not restricted.... [D]uring all horizontal restraints, the person must remain in a side-lying position and monitored continuously. Failure to do so may risk serious injury and death from positional asphyxia, [which] occurs when there is insufficient intake of oxygen as a result of body positioning that interferes with one’s ability to breathe.” [Ellipsis and brackets in original].

She further pleads that the “Mexia State School Annual Retraining Course Synopsis,” allegedly provided to every participant, gives the same warning and also provides “that the person who is restraining the lower body has an important role in monitoring breathing, circulation, and general condition of the restrained individual, and in assisting in maintaining the restrained individual in a side-lying position.”

[531]*531In her health-care liability cause of action, Salais alleges that TDADS [Mexia State School] and TDADS employees Korn, Thornton, and Thomas were negligent in the care and treatment of Ruben in each of the following ways:

1. Failure to recognize and/or appreciate the risk factors for the potential occurrence of death when performing a physical restraint;
2. Misuse of the restraints and restraint board when performing a physical restraint;
3. Failure to anticipate the risk of traumatic asphyxia when performing a physical restraint;
4. Failure to plan the physical restraint according to the increased risk for serious injury to Decedent;
5. Inappropriate management of the complication of performing a physical restraint;
6. Failure to have the requisite knowledge regarding appropriate responses to a combative physical restraint;
7. Failure to perform the appropriate interventions during the physical restraint of Decedent once health complications were encountered;
8. Failure to provide proper education and training to employees who were called upon to assist in the restraint of Decedent.

Section 74.351 of the Civil Practices and Remedies Code provides that within 120 days of filing suit, a claimant must serve a curriculum vitae (CV) and one or more expert reports regarding every defendant against whom a health care claim is asserted. Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp. 2009). Salais provided two expert reports. One report was by James Wohlers, a paramedic, which addresses the standard of care and breach elements relating to the use of the restraint board and the AED. The other report, of Donald Winston, M.D., addresses the causation element.

TDADS objected to the reports and moved to dismiss Salais’s health-care liability claim under section 74.351. See id. The motion asserted that Salais’s experts were not qualified and that their reports were inadequate. The trial court granted TDADS’s motion to dismiss without stating any grounds. In her first issue, Salais argues that the trial court erred in granting TDADS’s motion to dismiss.

We review the trial court’s decision to dismiss a health-care liability claim by the abuse-of-discretion standard. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Also, a trial court’s decision on whether a person is qualified to offer an expert opinion in a health-care liability claim is reviewed under the abuse-of-discretion standard. Moore v. Gatica, 269 S.W.3d 134, 139 (Tex.App.-Fort Worth 2008, pet. denied). “However, a trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.” Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279-80 (Tex.App.-Austin 2007, no pet.); see also Methodist Hosp. v. Shepherd-Sherman, 296 S.W.3d 193, 197 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Though we may not substitute our judgment for that of the trial court, the trial court has no discretion in determining what the law is or applying the law to the facts.”).

Wohlers Report

Qualifications

TDADS’s motion to dismiss and brief assert that Wohlers’s report and CV do [532]*532not establish his qualifications to testify about the standards of care applicable to the Mexia State School healthcare staff or to the treatment for individuals with behavioral, mental, and developmental disabilities. Its brief also asserts that Woh-lers’s report does not show that the “management and care” of Ruben on the occasion in question is “something universally done.”

Regarding his qualifications, Wohlers’s report states:

I received my paramedic education from Creighton University in 1992. Initially I was a paramedic in Omaha, Nebraska from 1992 to 1996, then a paramedic for the City and County of Denver from 1996 until 2000. Since 2000,1 have been with the Grand Island Fire Department in Grand Island, Nebraska as a paramedic/firefighter. I have also been involved in restraint asphyxia education since 2006. I teach to EMS, Law Enforcement and persons involved in the restraining of combative persons. I have been qualified as an expert in the field of restraint asphyxia.

Wohlers’s CV restates the above history and notes his certification as an EMS instructor and that he specializes in “restraint-related issues” and instructs on Advanced Life Support and Basic Life Support topics. His report further states:

I am familiar with the standard of care for restraining a combative person and understand what steps should be taken to monitor for respiratory distress.

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Salais v. Texas Department of Aging & Disability Services, 323 S.W.3d 527, 2010 Tex. App. LEXIS 6259, 2010 WL 3036482 (Tex. Ct. App. 2010).

323 S.W.3d 527 (Salais v. Texas Department of Aging & Disability Services) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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