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City of El Paso v. Hernandez3/16/2000
Pedro Hernandez, Individually and on behalf of all statutory beneficiaries of the Estate of Andrea Hernandez, Deceased (Appellees), brought this negligence case under the Texas Tort Claims Act based on an allegation that the delay in dispatching an ambulance from one El Paso hospital to another resulted in the death of Andrea Hernandez. Raising five issues for review, the City of El Paso brings an interlocutory appeal from the denial of its motion for summary judgment and plea to the jurisdiction based on sovereign immunity. See Tex.Civ.Prac.&Rem;Code Ann. ยง 51.014(a) (5) & (a)(8)(Vernon Supp. 2000). The facts of this case present not only a frightening but egregious example of the harm which results from the failure of an emergency ambulance service to properly implement a patient transport policy when a patient's life hangs in the balance. Despite the heroic efforts of several physicians and other personnel to expedite the transfer and then to ultimately save the patient's life, the unnecessary delay in dispatching an ambulance resulted in the death of Andrea Hernandez. The issue before us, however, is not whether the City of El Paso was negligent, but rather whether this claim falls within the Texas Tort Claims Act so that the City of El Paso's sovereign immunity is waived. Finding error, we reverse and remand for trial against the remaining defendant.
FACTUAL SUMMARY
On the morning of October 5, 1993, fifty-six-year-old Andrea Hernandez became ill at her El Paso home and told her daughter, Sylvia Hernandez, that she needed to go to the hospital. When Sylvia saw her mother begin "clamping her teeth," she called 9-1-1. An ambulance quickly arrived and transported Mrs. Hernandez to Thomason Hospital even though she lived much closer to Columbia Medical Center East. Surgeons at Thomason performed emergency exploratory surgery and determined that Mrs. Hernandez suffered from a dissecting aneurysm in the ascending aorta. Because further treatment required a heart-lung machine which Thomason did not have, Dr. Michael Oszczakiewicz, chief of thoracic surgery at Thomason, determined that Mrs. Hernandez should be transferred immediately by ambulance to Providence Hospital in El Paso. A doctor at Thomason, identified in the record only as Dr. Hiller, contacted Emergency Medical Services (EMS) to initiate the transfer of Mrs. Hernandez to Providence. Raul Ponce, an EMS dispatcher, advised Dr. Hiller that due to an EMS policy pertaining to the emergency transfer of patients from one hospital to another, he could not dispatch an ambulance until the administration office at Providence notified EMS that Providence had accepted the patient. That policy also required that a doctor or nurse accompany the patient. Before concluding the call, Dr. Hiller informed Ponce that Dr. Oz was both the transferring and accepting physician and would accompany Mrs. Hernandez to Providence. When Jane Odom, a Thomason nursing supervisor, later called to determine whether an ambulance had been dispatched, Ponce reiterated the requirements of the transfer policy. Odom then called the administrative secretary at Providence several times in an effort to obtain that institution's approval of the transfer. Each time, the administrative secretary told Odom that they were still looking for the administrator. Other evidence showed that the administrator could not be reached because he was out of town. Similarly, personnel in Thomason's admitting office repeatedly called the admitting office at Providence to determine whether they would accept the patient but could not obtain an answer. Dr. Oz also called Providence's administrative office in an effort to obtain the approval needed by EMS.
At an undetermi
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