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Totz v. Owens

Court of Appeals of Texas, First District

May 18, 2017

KENNETH A. TOTZ, D.O., FACEP, Appellant
v.
TELICIA OWENS, Appellee

         On Appeal from the 152nd District Court Harris County, Texas Trial Court Case No. 2012-07534

          Panel consists of Justices Jennings, Higley, and Massengale.

          MEMORANDUM OPINION

          Terry Jennings Justice.

         In this interlocutory appeal, [1] appellant, Kenneth A. Totz, D.O., FACEP, [2]challenges the trial court's order denying his motion to dismiss the health care liability claims[3] made against him by appellee, Telicia Owens, in her suit for negligence and gross negligence. In his sole issue, Totz contends that the trial court erred in denying his motion to dismiss Owens's claims on the ground that she failed to timely serve him with a qualified expert report.[4]

         We affirm.

         Background

         In her petition, Owens alleges that on February 6, 2010, she went to the Emergency Department at Memorial Hermann, complaining of a severe headache. She was diagnosed with a migraine, tension headache, and "headache associated with sinuses, " but "[n]o diagnostic testing was done to rule out any internal problems." On February 10, 2010, Owens returned to the Emergency Department at Memorial Hermann, complaining of the "same persisting symptoms" and was diagnosed with a headache and sinitus. Again, no diagnostic testing was performed. On February 21, 2010, Owens returned again to the Emergency Department at Memorial Hermann, complaining of a headache and blurry vision. Dr. Totz and another physician treated her, and she was again diagnosed with a headache. No diagnostic testing was performed.

         Subsequently, on February 24, 2010, Owens went to Methodist Hospital "for [an] assessment of the same symptoms that she complained of at Memorial Hermann." Doctors administered a "CT scan, " which showed that she was suffering from a head bleed. Methodist admitted Owens into its Intensive Care Unit, and it discharged her on March 3, 2010.

         On April 22, 2010, Owens went to "Ben Taub General Hospital complaining of sudden blindness, which resulted in [the] placement of a lumbar shunt." On May 14, 2010, she returned to Ben Taub, "complaining of sutures coming out, shunt leak[age], blurred vision, and [a] headache." Ben Taub admitted Owens for evaluation and subsequently discharged her. On May 17, 2010, Owens again returned to Ben Taub, "complaining of [a] headache, chest pain, and neck stiffness." Her shunt was infected, and it was removed. Owens was "found to have been infected with MRSA-Methicillin Resistant Staphyloccus Aureus."

         Owens further alleges that she sustained permanent damage to her optic nerve and is completely blind in both of her eyes. She also suffers from continuous damage and pain. However, Owens does not specify in her petition the medical cause or reason for her loss of vision and residual damage and pain.

         Owens brings health care liability claims against Dr. Totz for negligence and gross negligence, specifically alleging that he:

• Failed to obtain an accurate assessment of Owens;
• Failed to notice signs and symptoms of "Cerebral Venous Sinus Thrombosis" ("CVST");
• Failed to accurately and timely diagnose Owens;
• Failed to consider possible explanations and respond to severe headaches ...

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