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Hendricks v. Perales

Court of Appeals of Texas, Fifth District, Dallas

March 21, 2017


         On Appeal from the County Court At Law No. 1 Kaufman County, Texas Trial Court Cause No. 94963-CC

          Before Justices Fillmore, Whitehill, and Schenck



         In this interlocutory appeal, appellants Joel Hendricks, M.D. and Texas Health Physicians Group a/k/a Surgical Associates of Kaufman (THP) challenge the trial court's order overruling their joint objections to appellee John Perales's expert's report and denying their joint motion to dismiss Perales's health care liability claims against them. In two issues, Dr. Hendricks and THP contend the trial court abused its discretion by overruling their joint objections and denying their joint motion to dismiss because Perales's expert's report under chapter 74 of the civil practice and remedies code failed to sufficiently address Dr. Hendricks's standard of care, the manner in which Dr. Hendricks purportedly breached the standard of care, and the purported causal relationship between the alleged breach of the standard of care by Dr. Hendricks and Perales's injuries and damages. Because we conclude the expert's report is deficient with regard to the statutory element of causation, we reverse the trial court's order overruling Dr. Hendricks and THP's joint objections to the expert's report and remand the case to the trial court to consider whether a thirty-day extension of time for Perales to attempt to cure the deficiency is appropriate.


         Factual Allegations

         Perales sued Dr. Hendricks for negligence in the rendering of medical treatment to him. Perales sued THP under the doctrine of respondeat superior for Dr. Hendricks's negligence.[1]Given the procedural posture of this case, we draw the facts from the allegations against Dr. Hendricks in Perales's live petition in the trial court.

         On March 8, 2014, Dr. Hendricks diagnosed Perales with right and left inguinal hernias and recommended a bilateral laparoscopic surgical procedure to repair the hernias. Dr. Hendricks performed this surgical procedure on March 27, 2014. During the procedure, surgical mesh was placed over the hernia; however, extra mesh was left inside the abdominal cavity after the cavity was deflated and the incision closed. Perales alleges the surgical mesh was negligently placed or inserted in a way that made it highly susceptible to infection and complications.

         Perales followed the post-operative instructions provided by Dr. Hendricks. However, at a follow-up visit on April 2, 2014, Perales reported bloody bowel movements, positional fever, and a high level of pain when lying on his left side. Dr. Hendricks noted there was swelling and bruising in Perales's scrotum, but told Perales that despite his severe pain, he was "doing well." Dr. Hendricks recommended another follow-up visit in May 2014.

         Perales continued to have extreme abdominal pain and contacted Dr. Hendricks on April 8, 2014. Dr. Hendricks instructed Perales to go to the emergency room of Texas Health

          Presbyterian Hospital-Kaufman, where Perales was diagnosed with abdominal abscesses and advanced-stage sepsis. Perales was then transferred to Texas Health Presbyterian Hospital- Dallas for further treatment. During his hospitalization from April 8 to May 19, 2014, fluid was drained from Perales's pelvic area on multiple occasions in order to address the infection. Perales alleges he was "in-and-out" of hospitals for many months thereafter and he continues to experience abdominal pain and limitation of his ability to function in connection with the activities of daily life.

         Perales alleges the following acts or omissions by Dr. Hendricks proximately caused his injuries and damages:

i. Improperly assessing the degree of necessity for surgery;
ii. Failing to properly prepare the area for surgery;
ii. [sic] Failing to properly suture the surgical wounds;
iii. Using improper mesh and/or applying the mesh improperly to the hernia;
iv. Leaving the mesh exposed, thereby increasing the chance of infection;
v. Providing [Perales] with improper after-care instruction; vi. Failing to adequately monitor [Perales]'s health during and after surgery; and
vii. Using improper technique while performing [Perales]'s hernia repair surgery.

         Procedural ...

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