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Davenport v. Adu-Lartey

Court of Appeals of Texas, First District

June 8, 2017


         On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2014-71784

          Panel consists of Justices Bland, Massengale, and Lloyd.


          Michael Massengale Justice.

         Robert Davenport and his wife sued Dr. Samuel Adu-Lartey and an orthopedic clinic for negligence in connection with back surgery. The trial court granted summary judgment in favor of the defendants, based on their limitations defense. The appellants contend that they filed suit within the applicable limitations period and, alternatively, that limitations had not run because Dr. Adu-Lartey fraudulently concealed both his alleged negligence and the resulting injury.

         We affirm.


         Robert Davenport worked as a project superintendent in the construction industry. In September 2012, he stepped into a hole in his yard, wrenching his back and causing immediate pain in his left side, wrapping around his ribs. Two weeks later, he went to the UTMB-Galveston emergency room, complaining of the same pain. The ER personnel performed diagnostic tests, then advised him to see an orthopedic surgeon. Over the following seven days, he saw a cardiologist and his primary care provider and underwent a series of tests, including a CT scan at Houston Medical Imaging.

         Davenport previously had been treated by Athletic Orthopedics and Knee Center, which does business as AOK Orthopedics, for foot pain. Because he was familiar with the clinic, he went to AOK, where he saw orthopedic surgeon Dr. Adu-Lartey. Dr. Adu-Lartey or his staff initially gave Davenport epidural steroid injections at the site of his pain. When these proved unsuccessful, Dr. Adu-Lartey ordered a diagnostic test called a "CT myelogram" and x-rays. He diagnosed spinal cord narrowing at various locations in Davenport's back, and he recommended surgery.

         On September 26, 2012, Dr. Adu-Lartey performed surgery on Davenport's back. The pre-operative plan included a discectomy on the T9/T10 and T10/T11 discs, as well as laminectomy of the T9 and T10 vertebrae. According to Davenport, however, Dr. Adu-Lartey struck and contused-that is, bruised-his spinal cord during the surgery, then abandoned the surgery after completing only one level of discectomy and laminectomy, instead of the planned two levels. Davenport alleges that when he awoke in the post-operative recovery room, he "immediately knew something was wrong." He "immediately complained" to a nurse of "substantial numbness in his right hip and leg." Dr. Adu-Lartey arrived a short time later, and Davenport repeated his complaint. According to Davenport, he continued to complain of numbness over the following days, but Dr. Adu-Lartey attributed the numbness to "bright red" nerve roots in his back and the position in which he was placed on the operating table. A CT scan performed the day after the surgery showed both T9 and T10 laminectomies. Several days after surgery, Davenport was referred and discharged to Katy Rehab Hospital, where he spent 10 days recovering and receiving additional care. He also underwent MRIs at a variety of facilities over the days following the surgery, including Methodist West Imaging Center, and he received outpatient physical therapy at UTMB Medical Center in Galveston.

         Davenport continued to seek treatment for numbness. In September 2013, after seeing a variety of other physicians, one of these physicians referred him to Dr. Daniel Kim, a neurosurgeon at UT Health Science Center in Houston. On September 26, 2013-a year to the day after Dr. Adu-Lartey's operation-Dr. Kim performed surgery to address Davenport's ongoing complaints of back pain. According to Davenport, Dr. Kim discovered that Dr. Adu-Lartey had not completed all planned aspects of the 2012 surgery. Although the 2013 surgery alleviated the back pain, Davenport continues to suffer leg numbness, reduced strength, and unsteadiness. He has been unable to return to his job since his 2012 surgery.

         On September 26, 2014, exactly two years after Davenport's original back surgery, his lawyer sent a letter to Dr. Adu-Lartey and AOK. The letter advised that Davenport had retained counsel and intended to pursue a health care liability claim against Dr. Adu-Lartey and AOK. The letter explicitly stated that it was being provided pursuant to Texas Civil Practice and Remedies Code Section 74.051, "providing written notice of a health care liability claim . . . 60 days before the filing of a suit before a court of competent jurisdiction." Attached to the letter was a signed authorization form for the release of Davenport's health information.

         The form authorized Dr. Adu-Lartey to obtain Davenport's protected health information. The form identified five doctors other than Dr. Adu-Lartey who "examined, evaluated, or treated" Davenport "in connection with the injuries alleged to have been sustained in connection with the claim." This list did not include other physicians or health care providers who treated him in connection with his back injury, including: Memorial Hermann-Memorial City Medical Center, where the 2012 surgery was performed; UTMB-Galveston, where he initially presented to the emergency room, and where he underwent physical therapy after the 2012 operation; Katy Rehab Hospital, which treated him after he was discharged from Memorial Hermann; Methodist Hospital; and numerous outpatient imaging centers that saw him. The list also did not include Dr. Adu-Lartey or AOK.

         The authorization form also identified a total of eight physicians or health care providers who "examined, evaluated, or treated" Davenport "during a period commencing five years prior to the incident" made the basis of the claim. As permitted by the statutory form, Davenport identified as "Excluded Health Information" a list of three physicians for whom the authorization did not apply because he contended that such health care information was not relevant to the damages being claimed or to his physical, mental, or emotional condition arising out of the claim.[1]

         Dr. Adu-Lartey and AOK attempted to investigate Davenport's claim, but they encountered numerous obstacles. Twenty days after the initial notice, on October 16, 2014, Dr. Adu-Lartey's insurer, Texas Medical Liability Trust ("TMLT"), wrote to Davenport's counsel and requested an amended authorization listing Memorial Hermann hospital. Twenty-five days later, on November 10, 2014, TMLT repeated the request. Three days later-on November 13, 2014, 48 days after the initial notice-Davenport's counsel provided a second authorization that added Memorial Hermann, but it was undated. On December 17, 2014-more than 80 days after the initial notice and after this suit had been filed-TMLT informed Davenport's counsel that Memorial Hermann had rejected the undated authorization and refused to release any records under it. Two weeks later, Davenport's counsel sent a dated authorization to TMLT. And on April 15, 2015-201 days after the initial notice-Davenport's counsel sent supplemental authorizations to Dr. Adu-Lartey and AOK, adding more than a dozen providers who treated Davenport in connection with the complaints that form the basis of this suit and four providers who treated him during a period commencing five years before the 2012 surgery.[2]

         Meanwhile, on December 10, 2014-75 days after the initial notice and two years and 75 days after the 2012 surgery-Davenport and his wife filed their lawsuit. They alleged that Dr. Adu-Lartey concealed what happened during surgery. In particular, they alleged that Dr. Adu-Lartey falsely recorded in the post-operative report, prepared a few days after the 2012 surgery, that he operated on both the T9/T10 and T10/T11 discs. They also alleged that Dr. Adu-Lartey billed and received payment for completing procedures in both locations (though he failed to perform both), failed to obtain informed consent for the 2012 surgery, failed to apprise Davenport of the risks and benefits of the surgery, failed to manage Davenport's condition conservatively, failed to obtain proper evidence supporting surgery, and failed to provide proper staff and equipment for the surgery. They complained that Davenport was injured by the alleged spinal cord contusion and by being forced to repeat the surgery due to Dr. Adu-Lartey's alleged failure to complete it.

         Dr. Adu-Lartey moved for summary judgment on the grounds that the claims were barred by the applicable two-year statute of limitations, and that the limitations period was not tolled by the original notice of claim and authorization to release medical records. Dr. Adu-Lartey filed the motion and served notice of a hearing, but Davenport did not respond. The trial court granted summary judgment to Dr. Adu-Lartey, noting the lack of a response.

         The appellants moved for leave to file a response and for reconsideration of the motion for summary judgment, which the trial court granted over Dr. Adu-Lartey's objection. While that motion was pending, AOK also moved for summary judgment, arguing that limitations barred the claims. Davenport responded to both motions for summary judgment, contending that the September 2014 notice of claim and authorization for release of records extended the limitations period and that the suit was filed timely during the extended period. The parties submitted affidavits and supporting documents as evidence of their respective positions. Davenport and his wife also amended their petition to allege that Dr. Adu-Lartey fraudulently concealed his negligence, ...

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