Staci Bowser v. Craig Ranch Emergency Hospital, LLC

CourtCourt of Appeals of Texas
DecidedJune 30, 2015
Docket05-14-00501-CV
StatusPublished

This text of Staci Bowser v. Craig Ranch Emergency Hospital, LLC (Staci Bowser v. Craig Ranch Emergency Hospital, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Staci Bowser v. Craig Ranch Emergency Hospital, LLC, (Tex. Ct. App. 2015).

Opinion

REVERSE and REMAND; and Opinion Filed June 29, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00501-CV

STACI BOWSER, Appellant V. CRAIG RANCH EMERGENCY HOSPITAL, L.L.C., Appellee

On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-00158-2012

MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers Staci Bowser appeals from the trial court’s order granting summary judgment in favor of

Craig Ranch Emergency Hospital, L.L.C. in this healthcare liability lawsuit. We conclude that

Bowser raised a genuine issue of material fact on the challenged elements of her claims. We

reverse the trial court’s order and remand for further proceedings.

BACKGROUND

In June 2011, Bowser went to Emerus 24-Hour Emergency Room in McKinney, Texas,

complaining of knee pain. A doctor diagnosed her with a knee strain and ordered a 60 milligram

Toradol injection. Nurse Tillie Smith gave Bowser an injection of 60 milligrams of Toradol in

her left arm. Bowser immediately felt pain in her arm that radiated up and down from the

injection site. The next day she still had pain, and also had swelling, tingling, spasms, and

weakness in her arm. She went to a Care Now Clinic and then back to Emerus. Two days after she received the injection, Bowser saw an orthopaedic specialist who concluded that Bowser had

“[d]eltoid tendonitis and spasm post injection.” Two weeks later, the orthopaedic specialist saw

Bowser again and diagnosed her with “Complex Regional Pain Syndrome post Toradol

injection.” 1 The orthopaedic specialist referred Bowser to a specialist in pain management who

confirmed that Bowser suffered from CRPS caused by the Toradol injection. After trying a

variety of treatments, including the implantation of a permanent spinal cord stimulator, Bowser

was unable to obtain any long-term relief.

Bowser sued the Hospital 2 alleging both vicarious and direct liability theories of

recovery. She alleged that Nurse Smith gave the injection in the wrong location for the deltoid

muscle; that the volume of medication in the injection, 60 milligrams of Toradol in 2 milliliters

of fluid, exceeded the standard of care for an injection into the deltoid muscle; and that Nurse

Smith should have given the injection in a muscle that posed a lower risk for nerve injury such as

the ventrogluteal. Bowser also alleged that the Hospital was directly liable for its failure to have

adequate policies and procedures in place for the administration of intramuscular injections and

the supervision of its nurses and for its failure to properly train and supervise its employees about

the proper administration of a 60 milligram Toradol injection. She alleged that as a result of the

negligently administered injection, she suffered “intractable pain” that has prevented her from

returning to her work as a licensed practical nurse.

The Hospital filed a combined no-evidence and traditional motion for summary

judgment. In the no-evidence motion with regard to the direct liability claims, the Hospital

alleged that Bowser had no evidence the Hospital “breached the standard of care with regard to

1 CRPS is “a constellation of symptoms and signs” including “burning pain, hypersensitivity, intolerance to touch, limited range of motion at the [affected area], limited functional use of the [affected area], and vasomotor changes[.]” Treatment therapies include “medications commonly used to treat neuropathic pain, opioid analgesic medications, stellate ganglion blockades, and a permanent spinal cord stimulator.” 2 The record does not indicate the relationship between Craig Ranch Emergency Hospital, L.L.C. and Emerus 24-Hour Emergency Room. However, appellee does not complain. Bowser also sued, and then nonsuited, CR Emergency Services, P.A.

–2– policies and procedures or training and supervision of nurses or employees” and no evidence that

any “alleged breach was a proximate cause of [her] claimed injuries.” The Hospital also alleged

that Bowser had no evidence it had a duty or breached a duty “to promulgate policies regarding

the supervision of nurses or regarding the administration of intramuscular injections, including a

60 mg. Toradol injection.” And the Hospital alleged that Bowser had no evidence the Hospital

“had a duty to train and supervise its employees in how to provide a 60 mg. Toradol injection, or

that it breached such duty.” 3 In the traditional motion, the Hospital alleged that its summary-

judgment evidence conclusively negated the foreseeability element of proximate cause on

Bowser’s direct and vicarious liability claims.

Bowser responded to the motion and attached the following summary-judgment

evidence: (1) an expert affidavit and reports prepared by Steven H. Horowitz, M.D., board

certified in Neurology and Electrodiagnostic Medicine with considerable experience in the

treatment and research of CRPS, who testified that the Toradol injection was the proximate cause

of Bowser’s injury; (2) an expert affidavit and reports prepared by Carolynn Cassutt, RN, CRNI,

CLNC, VA-BC, credentialed in the specialty of infusion therapy and board certified in vascular

access, who gave opinions about the standard of care for intramuscular injections and alleged

inadequacy of the Hospital’s policies and procedures for the administration of intramuscular

injections; (3) excerpts from Bowser’s deposition; (4) excerpts from Nurse Smith’s deposition;

(5) excerpts from the deposition of the Hospital’s nurse expert; and (6) Bowser’s medical

records.

The Hospital objected to Dr. Horowitz’s and Nurse Cassutt’s affidavits arguing that they

stated new opinions that were untimely disclosed under rule 193.6, conclusory, an unfair

3 In its brief to this Court, the Hospital stated that it challenged “two essential elements” in its no-evidence motion: breach and proximate cause. Those are the elements we analyze on appeal.

–3– surprise, and shams because they conflicted with the experts’ prior deposition testimony. The

trial court did not rule on these objections, and the Hospital concedes on appeal that it did not get

a ruling on its objections to the affidavits. An objection that an affidavit is a sham because it

contradicts the affiant’s earlier deposition testimony is an objection about the form of the

affidavit that requires a ruling to be preserved for review. Hogan v. J. Higgins Trucking, Inc.,

197 S.W.3d 879, 882 (Tex. App.—Dallas 2006, no pet.). And an objection that an affidavit was

untimely disclosed under rule 193.6 is also an objection as to form. See Fort Brown Villas III

Condominium Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 881–82 (Tex. 2009) (per curiam)

(objection that opinion not timely disclosed under rule of civil procedure 193.6 requires ruling

from trial court). Consequently, those objections are not preserved for our review. Hogan, 197

S.W.3d at 883 (objecting party must get written ruling on objections to summary-judgment

evidence to preserve issue for appeal). However, to the extent the Hospital contends that the

affidavits were conclusory, we will address those objections in our discussion of the merits of the

summary judgment. See Brown v.

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