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Kincaid v. Austin Center for Outpatient Surgery11/4/2005
Appellant Dorothy Kincaid appeals from the dismissal of her medical malpractice claim against appellee, HealthSouth Surgical Hospital of Austin ("HealthSouth"). Kincaid claims she suffered injuries that were caused by the negligence of HealthSouth's staff in failing to instruct her to avoid sleeping on her back after eye surgery. The district court granted HealthSouth's motion to dismiss for failure to provide an adequate expert report under the former Texas Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01. We hold that the district court did not abuse its discretion and affirm the dismissal.
BACKGROUND
On October 19 and 20, 2000, Kincaid was diagnosed with and treated for an eye infection and retinal detachment in her left eye by Dr. M. Coleman Driver. Kincaid returned on November 28, for a viterectomy scleral buckle, an outpatient surgery recommended by Dr. Driver to repair the retinal detachment. Dr. Driver and his associate Dr. Jack Pierce performed the procedure at the HealthSouth Surgical Hospital in Austin. The surgery involved injecting silicone oil into Kincaid's left eye to help force out fluid around the retina.
Kincaid's post-operative written orders included the doctor's instruction: " osition: anything but flat on back." Kincaid alleges she did not receive this instruction from HealthSouth's staff either orally or in writing on the day of the surgery. She was discharged from the hospital that same day and stayed at a hotel in Austin. After sleeping on her back that night, Kincaid awoke the next morning with pain and impaired vision in her left eye. Kincaid returned to Dr. Driver's office that morning. He found that the silicone oil had migrated to the front part of her eye, causing increased intraocular pressure. To avoid potential damage to the eye nerve from the pressure, Dr. Driver began removing the silicone oil at the clinic but had to finish the procedure later that day in an operating room. Dr. Driver testified that he normally would have waited six months before removing the oil.
Kincaid filed suit against HealthSouth on February 10, 2003. She alleges that HealthSouth was negligent in failing to instruct her upon discharge to avoid sleeping on her back, as written in the post-operative orders. Kincaid claims the omission caused the elevated pressure, which required additional surgery in Dr. Driver's clinic on November 29, and other subsequent surgeries to save her eye. Ultimately, Kincaid contends she lost vision in her left eye and will soon have it removed because of HealthSouth's alleged negligence.
As required by article 4590i, Kincaid filed an expert medical report with the expert's curriculum vitae attached. See Tex. Rev. Civ. Stat. Ann. art. 4950i, § 13.01(d). In the report, Kathy Lunday, R.N., the designated expert, writes, in part:
It is clear from the record that the complications from the surgery on the 28th stem directly from the discharge nurse not communicating to the patient that she should avoid lying on her back. The RN is the patient's advocate and this especially holds true when the patient has had a surgical procedure and needs written instructions. It is quite clear that the nurse taking care of Mrs. Kincaid failed to transfer Dr. Pierce's written post op order for the patient to follow at home. This omitted instruction falls below the standard of care expected of nurses in similar situations, and the failure to meet the standard of care caused Mrs. Kincaid to engage in an activity which increased the intraocular pressure, the need for the subsequent next day surgery and Mrs. Kincaid's poor outcome.
HealthSouth filed a motio
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