Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 237th District Court Lubbock County, Texas
Trial Court No. 2012-504, 004; Honorable Les Hatch, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Patrick A. Pirtle Justice.
Texas Tech University Health Sciences Center
("TTUHSC"), brings this interlocutory appeal of the
trial court's order denying its Plea to the
Jurisdiction and Motion to Dismiss a medical malpractice
action filed by Appellee, Brenda L. Bonewit. In two issues,
TTUHSC asserts the trial court erred by (1) imputing actual
notice to TTUHSC in the absence of any evidence that anyone
at TTUHSC had any subjective awareness of fault related to
Bonewit's negligence claims and (2) denying in part
TTUSHC's motion to strike the affidavits of Bonewit's
stepdaughter, Katherine Williams, and Bonewit's husband,
Vidal Rivera, Jr., for consideration in the proceedings. We
affirm the trial court's order denying TTUHSC's
Plea to the Jurisdiction and Motion to Dismiss.
a medical malpractice action wherein Bonewit alleges
TTUHSC's employees were negligent in connection with a
surgery performed at TTUHSC to repair a hernia in 2010. When
that surgery was performed, Bonewit's medical history
included a prior hernia repair in 2006 wherein her doctor
created an anastomosis, i.e., a procedure where an unhealthy
portion of her colon was removed and the healthy ends of her
colon were reconnected to restore functional continuity.
Although she developed an infection several months after the
2006 surgery, that infection had healed.
years later, in the summer of 2010, Bonewit sought treatment
in connection with polyps in her colon. She made an
appointment with Dr. Shirmila Dissanaike, a TTUHSC employee.
During the examination, Dr. Dissanaike noticed Bonewit's
hernia was swollen and suggested that she have it repaired.
Bonewit subsequently made an appointment to go forward with
the hernia repair. A normal hospital stay for such a
procedure is typically five to seven nights. Therefore,
before she went into surgery, Bonewit's expectation was
that she would return to work in approximately a week.
October 6, 2010, Bonewit entered the hospital for the hernia
repair surgery. Accompanying Dr. Dissanaike during
Bonewit's surgery was Dr. LaJohn Quigley, a surgical
resident and TTUHSC employee. The surgeons anticipated
performing an open ventral hernia repair with repair of
Bonewit's abdominal wall by creating an incision, placing
mesh between the muscle layers, and closing the abdominal
incision. While removing adhesions and separating her
abdominal wall from her bowel, two enterotomies, or
unintended cuts or perforations, of the bowel occurred. The
potential risk of an enterotomy is that, if undetected,
leakage can lead to intra-abdominal sepsis or infection. In
his deposition, Dr. Quigley characterized these two cuts as
"unintended injuries" to Bonewit's colon with
the attendant risk that contents of her bowel could leak into
her abdomen. The two enterotomies were repaired with sutures,
but not before bowel fluids or feces had spilled into
the two enterotomies, the surgeons observed that although
Bonewit's colon appeared normal on the exterior, the
interior was "large" and "boggy." The
surgeons then decided to remove the unhealthy colon tissue
and staple the ends of the healthy colon tissue together.
They removed the unhealthy colon tissue, including both
repaired enterotomies, and created a second anastomosis. Due
to the complications encountered, Bonewit's surgery took
twice the time a ventral hernia repair would normally take.
deposition, Dr. Quigley described the process of creating an
anastomosis as using staples to connect two ends of a pipe.
He stated that the standard of care is that you make the
closure so that there is no anastomotic leak because where
there is such a leak, the patient is at risk of becoming
October 12, Bonewit's sixth day of post-operative
treatment, she became critically ill. She was hypotensive
with septic shock from gross peritonitis due to leaks
attributed the anastomosis created by Drs. Dissanaike and
Quigley six days earlier. Dr. Dissanaike described
"sepsis" as the presence of a higher heart rate and
higher breathing rate due to a known or suspected infection.
She also described Bonewit's gross peritonitis as fecal
contamination of her abdomen comprised of more than one
abscess area due to an anastomotic breakdown. In his
deposition, Dr. Quigley indicated that he could not say when
the leaks developed. Although he believed the leaks developed
days after the initial surgery, he also stated that it was
possible the leak could have occurred the first day following
was transferred to the Surgical Intensive Care Unit where she
was seen by Dr. John Griswold, a general/trauma surgeon
employed by TTUHSC and chair of TTUHSC's department of
surgery. Drs. Disssanike and Quigley reported to him, and in
the event of an adverse medical event, he reported to the
risk management department. Dr. Griswold was called in to
repair the anastomotic leak that was causing Bonewit's
infection and to explore her abdominal region. During the
surgery performed by Dr. Griswold, he discovered there were
multiple leaks from the anastomosis with gross contamination
of Bonewit's abdominal cavity, i.e., fluids were leaking
out of her intestine into her abdominal cavity, a condition
Bonewit did not have when she arrived at the hospital for
surgery on October 6.
deposition, Dr. Griswold agreed with counsel that on October
12 and 13, he had knowledge that there was an anastomotic
leak in multiple areas with gross contamination of
Bonewit's abdominal cavity. She had a leaking anastomosis
and "[he] took care of it." "The lady had an
issue that I needed to deal with, so I dealt with it."
He agreed that, on October 12, he was aware the anastomotic
leak was due to her initial hernia surgery. He also agreed
that "[t]he leak occurred in the anastomosis done by Dr.
Dissanaike and Dr. Quigley."
the gross contamination from the leak, Dr. Griswold sought to
redirect Bonewit's stool away from her abdomen area in
order to promote healing by performing a new procedure, an
ostomy. That is, he surgically adapted Bonewit's bowels
to allow for feces and fluids (bowel functions) to be
collected outside her body in a colostomy bag. Dr. Dissanaike
indicated this was not a common procedure in an open ventral
hernia repair. On deposition, Dr. Griswold conceded that it
is possible for a surgeon to make an anastomotic connection
where the seal is not good, and if the doctor did a
technically improper anastomosis, the surgery would be below
the standard of care.
to the surgery by Dr. Griswold, Bonewit underwent six more
surgical procedures. Other procedures included attempts to
close the surface incision on her abdomen because it was
difficult to bring the skin tissue together due to swelling
from the infection. Additionally, a number of the procedures
were abdominal washouts to lessen the amount of bacteria in
her abdomen. Dr. Quigley testified that when someone comes in
for a ventral hernia repair, the patient should reasonably
anticipate a single surgery and not six additional surgical
procedures. In other depositions, TTUHSC surgeons ...