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Texas Tech University Health Sciences Center v. Bonewit

Court of Appeals of Texas, Seventh District, Amarillo

November 15, 2017


         On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2012-504, 004; Honorable Les Hatch, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          Patrick A. Pirtle Justice.

         Appellant, 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.[1] 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.


         This is 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.

         Four 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.

         On 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 Bonewit's abdomen.

         After 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.

         In his 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 septic.

         On 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 the surgery.

         Bonewit 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.

         In his 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."

         Due to 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.

         Subsequent 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 ...

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