Pankaj v. Hernandez

695 S.W.3d 900

Shilpa Thakkar PANKAJ, M.D., Peekaboo Pediatrics, and Memorial Hermann Health System d/b/a Memorial Hermann Greater Heights Hospital, Appellants

v.Eva HERNANDEZ, Individually and as Next Friend of Minor Child J.H., Appellee

NO. 01-23-00524-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued July 23, 2024

On Appeal from the 11th District Court, Harris County, Texas, Trial Court Case No. 2021-47717

De La Rosa Law Firm, Michael Blaise, Aron Gregg Robles, Houston, TX, for Appellant.

Arnold & Itkin LLP, Kurt B. Arnold, Andrew R. Gould, Brian M. Christensen, Micajah Boatright, Roland Christensen, Alec J. Paradowski, Houston, TX, for Appellee.

Panel consists of Chief Justice Adams and Justices Kelly and Goodman.

OPINION

Gordon Goodman, Justice

This accelerated interlocutory appeal arises out of a medical malpractice lawsuit filed by Eva Hernandez, individually and as next friend of her infant son, in which she alleges her son sustained a severe brain injury due to the negligence of multiple defendants who cared for them before, during, and after her son’s birth. Among other defendants, Hernandez sued Memorial Hermann Health System, doing business as Memorial Hermann Greater Heights Hospital, which employed the nurses who cared for her during labor and delivery and afterward. Hernandez also sued Shilpa Thakkar Pankaj, M.D., a pediatrician who cared for Hernandez’s son soon after he was born, as well as Pankaj’s medical practice, Peekaboo Pediatrics.

As required by the Texas Medical Liability Act, Hernandez served these three defendants with a preliminary expert report by Robert D. Eden, M.D. These three defendants, in turn, objected to Eden’s report, requesting dismissal of Hernandez’s claims against them and attorney’s fees under the Act. In their respective objections, one filed by Pankaj and Peekaboo Pediatrics and another filed by Memorial Hermann, these defendants argued Eden’s report was insufficient in various ways.

The trial court denied the objections, and these three defendants appeal.

We affirm the trial court’s order denying Memorial Hermann’s objection to Eden’s expert report. But we set aside the trial court’s order denying Pankaj and Peekaboo Pediatrics’ objection to Eden’s report. We remand this cause to the trial court for further proceedings consistent with our opinion, including the entry of an order dismissing Hernandez’s claims against Pankaj and Peekaboo Pediatrics and awarding reasonable and necessary attorney’s fees to these two defendants.

BACKGROUND

In her live pleading, Hernandez alleges she was admitted to Memorial Hermann Greater Heights Hospital for labor and delivery. Several hours later, she further alleges, the fetus’s heart rate indicated fetal distress. Despite its evident distress, the fetus was only delivered by cesarean section several additional hours later, too late to avoid a severe brain injury resulting from this negligent delay. Among the negligent acts Hernandez alleges, she maintains that the nurses failed to institute appropriate nursing care in response to the fetus’s distress. She also alleges that, after her son was born, a blood-gas analysis should have been performed and his brain injury should have been treated, including through cooling techniques.

As required by the Texas Medical Liability Act, Hernandez timely served Pankaj, Peekaboo Pediatrics, and Memorial Hermann with a report by Dr. Eden.

Eden’s report sets forth his credentials and qualifications. He has been a board- certified obstetrician-gynecologist and maternal-fetal-medicine specialist for more than two decades. Eden currently holds an academic position within the Department of Obstetrics and Gynecology, Division of Maternal-Fetal Medicine, at the Upstate Syracuse Campus of the State University of New York. This full-time academic employment regularly entails labor and delivery, in-patient treatment involving high- risk pregnancies, out-patient consultations regarding maternal-fetal-medicine consultation and ultrasounds, and the performance of administrative tasks.

In terms of his experience, Eden states that he has supervised nurses and residents in the labor and delivery care setting and has trained nurses in this area, including training them to interpret fetal heart rate tracings. As a result of his supervision and training of nurses and residents, Eden is familiar with the standards of care applicable to nurses, residents, and others concerning the provision of labor and delivery health care services. Eden further states that he is experienced in working with OB- GYN patients throughout pregnancy, during labor and delivery, and postpartum as well. In particular, he has extensive experience in fetal monitoring from the onset of labor through delivery and care of pregnant mothers. He states that he is experienced in the interpretation of fetal heart rate tracings, including those that display concerning fetal heart rate patterns, and in the care of newborns who show signs of oxygen deficiency. He has "cared for hundreds of patients who experienced problems of the fetus during labor and delivery like the ones experienced here."

Eden has published many peer-reviewed articles, including articles regarding testing prior to birth and fetal monitoring from the onset of labor through delivery.

In his report, Eden opines that sometime after Hernandez was admitted, fetal distress should have been apparent. In support of this conclusion, Eden relies on fetal heart rate tracings. One made before an epidural anesthetic was administered already showed cause for concern: decreased fetal heart rate variability, lack of accelerations, and variable decelerations. After the administration of the anesthetic, Hernandez’s blood pressure dropped and remained low for more than an hour. According to Eden, significant maternal low blood pressure of this sort is associated with inadequate oxygenation of the fetus due to decreased placental perfusion. In addition, a subsequent fetal heart rate tracing showed a prolonged deceleration with a slow return to baseline. Indeed, even after Hernandez’s blood pressure returned to normal, the fetal heart rate remained concerning, including prolonged decelerations.

Eventually, hours after the fetus first showed signs of distress, Hernandez was taken to the operating room, where her son was delivered by cesarean section. Eden opines that she should have been moved to the operating room for an emergency cesarean section much sooner, given the signs of fetal distress, and that the failure to do so, among other things, caused the fetus to suffer a severe brain injury. Eden further opines that circumstances after delivery corroborate his opinion that oxygen deprivation resulting from delayed delivery caused the severe brain injury. In part, Eden relies on the infant’s clinical presentation at birth, which included bluish or pale skin, weak cry, slow breathing, limpness or lack of movement, and poor reflexes. In addition, Eden relies on an MRI performed about 18 months after birth, which Eden maintains corroborates his causation opinion by showing intracerebral hemorrhage, hypoxic-ischemic encephalopathy, and encephalomalacia.

In general, Eden faults everyone involved in the labor, delivery, and post-birth care for the severe brain injury. With respect to the nurses in particular, Eden opines that the standard of care required them to interpret fetal heart rate tracings, identify signs of fetal distress, and notify physicians of signs of fetal distress so that prompt measures could be undertaken to prevent harm to the fetus, including, if necessary, delivery by a cesarean section. Should physicians delay in undertaking these preventative measures, the nurses were then required to "go up the chain of command to report to his/her supervisor and/or another physician so that the hospital can provide an attending to conduct the emergency cesarean section." Eden asserts the nurses breached these standards by failing to recognize or notify physicians about signs of fetal distress that developed well before delivery, and, as a result, an emergency cesarean section was not performed soon enough to avoid the injury.

Eden also opines that the nurses breached the applicable standard of care in various other ways. For example, fetal and maternal heart rate data is not always available or clear, which he attributes to the nurses’ failure to properly connect monitors or electrodes, an action necessary to ensure that correct fetal heart rate data is collected. Eden additionally faults the nurses for failing to recognize the clinical signs of hypoxia when the child was born and their corresponding failure to ensure that blood-gas testing was performed by physicians and their failure to cool the child.

In addition, Eden maintains that the standard of care applicable to the hospital itself required it to ensure that labor and delivery nurses can interpret fetal heart rate tracings and recognize signs of fetal distress. Moreover, the hospital must also have policies as to what nurses are to do when they recognize signs of fetal distress.

With respect to Dr. Pankaj, Eden opines that the applicable standard of care required her to recognize the signs of hypoxia in a newborn and, when evident, to order blood-gas testing and whole-body cooling within six hours of birth. Because Pankaj took over the child’s care within this six-hour period but failed to order blood-gas testing or whole-body cooling, she thereby breached the standard of care. According to Eden, these breaches "caused and exacerbated" the child’s injuries.

Memorial Hermann filed an objection to Eden’s expert report. In its objection, the hospital argued that the report was insufficient in three ways. First, it objected that Eden failed to show a breach of the standard of care by the hospital or its personnel. Second, the hospital objected that Eden’s own recitation of facts refuted his opinion that the nurses breached the...