 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Finley v. Steenkamp5/18/2000
I. INTRODUCTION
In this appeal, we must decide whether giving presuit notice of a health care liability claim to a health care provider as required by section 4.01 of the Medical Liability and Insurance Improvement Act ("the Act") tolls the statute of limitations applicable to a non-health care provider defendant on a related negligence claim. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 4.01(a), (c) (Vernon Supp. 2000). We must also determine whether the trial court abused its discretion in dismissing a health care liability claim with prejudice after the plaintiff failed to timely file an expert report with the defendant health care provider, as required by section 13.01 of the Act. Id. § 13.01(d), (e).
We affirm.
II. BACKGROUND
In 1995, Appellant Richard W. Finley suffered from renal disease and received hemodialysis treatment at Appellee Vivra Renal Care, Inc. d/b/a Community Dialysis Services of Fort Worth ("CDS"), a dialysis center. In July 1995, Finley underwent surgery to revise the dialysis access in his left arm. On August 7, 1995, Finley went to CDS for his scheduled hemodialysis treatment. Finley was attended to by Appellee Salitha Jose, a dialysis technician employed by CDS. Appellee Terry Steenkamp, a charge nurse employed by CDS, was Jose's supervisor. Steenkamp did not inform Jose of Finley's recent graft revision. When Jose began Finley's treatment, she mistakenly inserted the dialysis needle into the non-functional graft rather than the new one. Blood began leaking into the soft tissue of Finley's arm and he immediately complained of pain. Finley was later discharged with instructions to apply ice to his arm. The incident was not reported to a physician.
After Finley returned home, his arm continued to swell and hurt. That evening, the pain in Finley's arm became so severe that he went to the emergency room. An emergency room physician evaluated Finley and admitted him to the hospital. Tests conducted the following day revealed that the revised graft in Finley's left arm could no longer be used for dialysis treatment. Finley was then taken to Harris Methodist Hospital where he received a catheter in his jugular vein. The blood loss into the hematoma area of Finley's left arm caused him to become anemic, requiring a blood transfusion. Additionally, Finley's left arm continued to leak fluid, which caused the skin on his arm to become bloody and blistered.
Before filing suit, Finley gave notice of his claim to Appellees. On October 20, 1997, 2 years and 75 days after the complained of incident, Finley filed suit against CDS, Steenkamp, and Jose, alleging the parties were negligent in performing his dialysis on August 7, 1995. Finley also argued that CDS was liable under the doctrine of respondeat superior for Jose's and Steenkamp's alleged negligence.
On October 14, 1998, Steenkamp filed a motion to dismiss based on Finley's failure to provide an expert report within 180 days of filing suit, as required by section 13.01(d) of the Act. Id. art. 4590i, § 13.01(d). On the same date, CDS and Jose filed a motion for summary judgment. After a hearing, the trial court granted both motions. Finley filed a motion for new trial that was overruled by operation of law, followed by his notice of appeal.
III. THE EXPERT REPORT REQUIREMENT
In his first issue, Finley alleges the trial court erred in dismissing his suit against Steenkamp because his failure to file the expert report within 180 days of filing suit was an accident or mistake, and was not intentional or the result of conscious indifference. In any health care liability claim, section 13.01(d) of article 4590i requires the compla
Page 1 2 3 4 5 6 7 8 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|