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Bustillos v. Rowley8/31/2005
Appellants Corina Bustillos and Virginia Bustillos, as Survivors and Heirs at Law of the Estate of Raquel Arriola, Deceased, and the Estate of Raquel Arriola appeal from the dismissal of their medical malpractice claim against Appellee Patricia Rowley, M.D. ("Rowley"). In the lawsuit, Appellants asserted claims against Rowley for negligent emergency physician care and treatment of their mother, Raquel Arriola, which the Appellants alleged caused her death. The Appellants contend that the trial court erred in granting Rowley's motion to dismiss because: (1) Rowley waived her statutory right to challenge the adequacy of the expert reports; and (2) the two expert reports provided by Appellants satisfied the requirements under the former Texas Medical Liability and Insurance Improvement Act ("the Act"). We reverse and remand.
Late in the evening on March 4, 2000, Raquel Arriola was admitted to the emergency room at Sierra Medical Center in El Paso, Texas. Upon admission, Ms. Arriola complained of pleuritic chest pain, chills, headache, diarrhea, and nausea. Her medical history revealed systemic lupus erythematosus and spleen removal. Rowley, the examining emergency room physician, ordered a chest x-ray, ECG, and certain laboratory tests. Ms. Arriola decompensated and arrested at 3:42 a.m. She was resuscitated and admitted to the intensive care unit, but arrested again at 5:18 a.m. and could not be revived.
On March 5, 2002, the Appellants, Ms. Arriola's surviving children and her estate, brought a medical malpractice suit against Rowley and Tenet Hospitals Limited ("Tenet"), the operator of the hospital under the Act. With regard to Rowley, the Appellants alleged in their amended petition that Rowley failed to properly and timely diagnosis and treat Ms. Arriola's infection, cardiac condition, and pleural effusion, failed to order continuous monitoring of Ms. Arriola's oxygen saturation level, failed to timely follow-up on physician orders for administration of antibiotics, failed to order a CT scan prior to lumbar puncture, and failed to order two blood independent cultures for Ms. Arriola. The Appellants alleged the hospital was negligent because hospital staff took no action to address the abnormal ECG results, electrolyte imbalance, mild respiratory desaturation, or low white blood cell count and failed to monitor Ms. Arriola's vital signs or her cardiac condition. The Appellants further alleged that as a result of Rowley's and the hospital employees' failure to properly and timely monitor and treat Ms. Arriola's infection, cardiac condition, and subsequent respiratory distress, Ms. Arriola suffered a full respiratory and cardiac arrest and died.
On September 3, 2002, Appellants filed two expert reports and curricula vitae from Paul K. Bronston, M.D. and Margaret Bowers, R.N., to satisfy the expert report requirements of the Act. See formerTEX.REV.CIV.STAT.ANN. art. 4590i, ยง 13.01(d)(Repealed 2003). On October 2, 2002, co-defendant Tenet filed a motion to dismiss in which it challenged the adequacy of Dr. Bronston's and Nurse Bowers' reports. Shortly thereafter, Rowley's counsel and Appellants' counsel entered into a Rule 11 agreement that extended Appellants' deadline to file the expert reports until November 24, 2002.
According to the court docket sheet, the trial court denied Tenet's motion to dismiss on January 13, 2003. Tenet brought an original proceeding in this Court to challenge the trial court's decision and sought mandamus relief. See In re Tenet Hosps. Ltd., 116 S.W.3d 821 (Tex.App.--El Paso 2003, orig. proceeding). In In re Tenet Hosps. Ltd., this Court concluded that the trial court had abused its discretion in denying Tenet's motion because the t
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