Care v. Thompson

638 S.W.3d 218

PEDIATRICS COOL CARE, Jose J. Salguero, M.D., PA, Jose J. Salguero, M.D., and Jenelle Robinson, P.A.-C., Appellants

v.Ginger THOMPSON, Individually and as the Representative of the Estate of A.W. (Deceased), and Brad Washington, Appellees

NO. 14-19-00031-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed January 29, 2021

R. Brent Cooper, Edward P. Quillin, Diana L. Faust, Dallas, Thomas Glenn Ingram, Kyle Burke, Dallas, for Appellants.

Jason Charles Webster, Houston, Steven E. Aldous, Dallas, Heidi O. Vicknair, Houston, for Appellees.

Panel consists of Justices Wise, Jewell, and Poissant.

MEMORANDUM OPINION

Margaret "Meg" Poissant, Justice

This is an appeal from a jury verdict in a medical malpractice and wrongful death action brought by appellees, Ginger Thompson, individually and as the representative of the estate of A.W. (deceased), and Brad Washington against appellants Pediatrics Cool Care, Jose J. Salguero, M.D., P.A., Jose J. Salguero, M.D., and Jenelle Robinson, P.A.-C., resulting in a judgment in favor of appellees. Appellants present multiple issues contesting the judgment. For the reasons stated, we affirm the judgment of the trial court.

I. BACKGROUND

In 2010, Ginger Thompson's ("Thompson") and Brad Washington's ("Washington") daughter, A.W., who was twelve years old, began receiving treatment as a patient at Pediatrics Cool Care ("PCC"), a full-service pediatric clinic located in Ennis, Texas.¹

Jose J. Salguero, M.D. ("Dr. Salguero") is the lead physician at PCC; he does business as PCC through his professional association, Jose J. Salguero, M.D., P.A. Dr. Salguero is responsible for overseeing all employees and caregivers in his practice, including nurse practitioners, physician assistants, and medical assistants. During the relevant time, Allyn Kawalek, R.N., F.N.P.-B.C.² ("Kawalek") and Jenelle Robinson, PA-C³ ("Robinson"), worked, respectively, as a nurse practitioner and a physician's assistant under the supervision of Dr. Salguero at PCC.

At PCC, medical records are created by the physician's assistant or the nurse practitioner by dictating the relevant information into the telephone; the dictation is then be transcribed by a third-party company located in New Mexico. The physician's assistants and family nurse practitioners log in to the dictation service under Dr. Salguero's login number. The physician assistants and nurse practitioners do not review or sign off on their medical records; instead, all records, are electronically signed by Dr. Salguero whether he reviewed the record or not. Separate and apart from the physician's assistant and nurse practitioner, there are seven medical assistants at PCC, each with their own login numbers with respect to medical records, who are permitted to enter the patient's vital signs and other triage information into a patient's medical record; the medical assistants were not supposed to diagnose patients, treat patients, perform medical coding, or issue prescriptions, without Dr. Salguero's permission.

Between October 2010 and January 2012, A.W. was seen by different healthcare providers at PCC for a variety of ailments (e.g. , fractured finger, dysmenorrhea, sore throat, and acne) and was evaluated multiple times for gastrointestinal complaints, including vomiting and abdominal migraines as well as migraine headaches. Thompson, A.W.’s mother, always accompanied A.W. during her appointments.

March 1, 2012, office visit

On March 1, 2012, A.W. went to PCC with her mother and was evaluated by Robinson. At that time, A.W. complained of depression, stating that she felt sad all the time, that she could not control her feelings, that she cried while watching television commercials, and that she was stressed out. Thompson indicated to Robinson that A.W.’s depression had been going on for some time. Thompson stated there was a family history of depression and bipolar disorder and that Thompson herself was taking Celexa for depression.

Robinson spent less than thirty minutes evaluating A.W. Robinson did not perform a detailed psychiatric work-up on A.W. or use the depression questionnaire that was available; she diagnosed A.W. with depressive disorder and prescribed a 30-day supply of Celexa (20mg/day). Celexa is an antidepressant medication with a "black box" warning label that Celexa has a significant risk of serious adverse effects, including suicidal ideation. Robinson did not specifically recall the visit, but maintains she always gives the warning when prescribing Celexa, including possible suicide ideation and that the patient needs to be watched closely when starting the medication. Robinson further asserts that she gave Thompson the name and number of counselors in the area, and strongly recommended that A.W. get counseling. Robinson wrote in her notes that A.W. was to return to PCC for a follow-up appointment in one week. Robinson did not recall telling the receptionist to schedule an appointment for A.W. in one-week.

Thompson denied that Robinson gave her names of area counselors; however, Thompson admitted looking for a counselor and then deciding not to send A.W. to one after A.W. indicated she did not want to see a counselor. Thompson denied that anyone instructed her to schedule a follow-up appointment for A.W. within one week.

Without Robinson's knowledge, a medical assistant at PCC changed A.W.’s medical record from a diagnosis by Robinson of depression to "depression, not otherwise specified." Additionally, Robinson did not prescribe any refills of Celexa but the medical assistant sent the pharmacy the 30-day prescription plus three refills—approximately 120 days or four months. The prescription that was sent to the pharmacy, as opposed to the one Robinson intended, exceeded what Robinson could prescribe for Celexa under PCC policies and Drug Enforcement Administration regulations. Robinson did not see the changes the medical assistant made in A.W.’s medical record until after the lawsuit was filed in 2014 because PCC did not have a policy or procedure in place for the physician assistants or nurse practitioners to review medical records after they were transcribed.

April 17,2012, office visit

On April 17, 2012, A.W. returned to PCC complaining of a migraine and was seen by Kawalek. At that time, only prior office visit notes regarding A.W. were available to Kawalek. A.W. indicated that she had not had a migraine for a month and a half, and the medication previously prescribed (i.e. , Relpax ) had "knocked it out"; however, A.W. needed a note for school. Kawalek performed a well-child visit, noting that both A.W. and Thompson had noticed a huge positive change in A.W.’s mood since beginning Celexa. Kawalek assessed A.W. with migraines, depressive disorder, and acne. Kawalek continued the Celexa prescription. Kawalek did not question the prescription or suggest A.W. follow-up with Robinson concerning her depression diagnosis.

After Kawalek dictated A.W.’s medical record, the record was altered by someone else in the office to add the phrase "Patient is to come back in 30 days for follow-up." The record was altered on March 4, 2014, according to the electronic medical record access log but was electronically signed by Dr. Salguero on March 7, 2014.

July 31, 2012, telephone call and refill

On July 31, 2012, Thompson called PCC and asked for a refill of A.W.’s Celexa prescription. At that time, Bernadette Aguillon ("Aguillon"), a medical assistant at PCC, spoke to Thompson and told her that she would call in a prescription for a 30-day supply and three refills. Aguillon looked at A.W.’s chart and noticed that A.W. had not been in the office since April of 2012. Aguillon allegedly tried to call Thompson back to tell her A.W. needed to return to PCC but she was not able to speak with her. Aguillon was not authorized to issue prescriptions and did not have permission from any of the providers at PCC to issue A.W.’s refills. Nevertheless, Aguillon refilled the prescription.

On August 14, 2012, A.W. was found unresponsive in her room and later pronounced dead. An autopsy documented her cause of death as suicide from a Benadryl overdose.

Aguillon learned of A.W.’s suicide from her daughter who went to school with A.W. The following day, Aguillon viewed A.W.’s chart to confirm she had been a patient and to review what treatment had been provided at the clinic. A week or so later, Washington contacted PCC and requested copies of A.W.’s medical records. All records requests to PCC went to Sylvia Lopez, the assistant manager at PCC, and she accessed A.W.’s records to make a copy for Washington.

Procedural History

On February 26, 2014, appellees filed this medical malpractice case against PCC, Dr. Salguero, M.D., P.A., Dr. Salguero, M.D., Robinson, and Kawalek, alleging negligence and gross negligence relating to the care and treatment rendered to A.W. on or about March 1, 2012, April 17, 2012, and July 31, 2012. Appellees assert appellants were negligent in a variety of ways, including but not limited to, at the time of prescribing the anti-depressant Celexa, appellants’ failure to: discuss with A.W. or Thompson the black box warning; inform A.W. and Thompson to read the package insert to the anti-depressant; inform them that A.W. should be closely monitored while taking the anti-depressant; inform them that A.W. should be evaluated by a psychiatrist or psychologist; warn them that Celexa was linked to an increased risk of suicide. Appellees also alleged that appellants failed to monitor A.W. once the Celexa had been prescribed and refilled the medication over the phone without further evaluating A.W. Appellees further alleged that Dr. Salguero failed to properly oversee and monitor his physician assistant and nurses regarding prescribing medications, such as Celexa, to adolescent patients. Appellees alleged as a result of such negligence, A.W. committed suicide on August 14, 2012.

Additionally, appellees alleged that PCC and/or the P.A. was...