Whitmire v. Feathers

GERALD A. WHITMIRE, M.D., CYNTHIA D. MCNEIL, M.D.,WINNIE R. GELERA, R.N., AND MEMORIAL HERMANN HEALTH SYSTEM D/B/AMEMORIAL HERMANN SOUTHWEST HOSPITAL, Appellants v. TRINASHA FEATHERS, INDIVIDUALLY, ON BEHALF OF THEESTATE OF E.B., DECEASED,AND AS NEXT FRIEND OF E.B., A MINOR, Appellee

NO. 01-19-00094-CV

Court of Appeals For The First District of Texas

August 25, 2020

On Appeal from the 125th District Court Harris County, Texas

Trial Court Case No. 2018-41615

MEMORANDUM OPINION

In this interlocutory appeal,¹ appellants, Gerald A. Whitmire, M.D., Cynthia D. McNeil, M.D., Winnie R. Gelera, R.N., and Memorial Hermann Health System, doing business as Memorial Hermann Southwest Hospital ("Memorial Hermann") (collectively, "appellants"), challenge the trial court's orders overruling their objections and denying their motions to dismiss the health care liability claims² brought against them by appellee, Trinasha Feathers, individually, on behalf of the estate of E.B., deceased, and as next friend of E.B., a minor, in Feathers' suit for negligence. In multiple issues, appellants contend that the trial court erred in overruling their objections and denying their motions to dismiss Feathers' claims against them.³

We affirm.

Background

In her petition, Feathers alleges that from April 8, 2016 to July 2, 2016, she was pregnant with twins, E.B., deceased ("Twin A"), and E.B., a minor child ("Twin B"). During that time, Dr. Whitmire provided prenatal care to Feathers. Feathers had two prior pregnancies that were carried to full term. Between April 8, 2016 and July 2, 2016, Whitmire saw Feathers four times for prenatal care.

On or about April 20, 2016, Feathers received an ultrasound, which showed that each twin was healthy without abnormalities and that the twins "sonographic fetal age range [was] approximately seventeen weeks and [five] days." On or about June 24, 2016, Feathers saw Dr. Whitmire because she was experiencing abnormal vaginal discharge. Whitmire told Feathers that the discharge was normal, and he sent her home.

On or about June 29, 2016, after experiencing abdominal pain and with concerns about "persistent vaginal discharge," Feathers went to Memorial Hermann where she was evaluated by Nurse Gelera and Dr. McNeil. According to Feathers, Nurse Gelera and Dr. McNeil were agents, employees, or ostensible agents of Memorial Hermann. While at Memorial Hermann, Feathers was told that she was "a bit dehydrated," and she was given an injection of concentrated electrolytes. She was then sent home with directions to keep her next appointment with Dr. Whitmire.

On or about July 2, 2016, Feathers, at twenty-seven-weeks' pregnant, arrived at Memorial Hermann's emergency room, "stating that she was going into labor." Within twelve minutes of arrival, Feathers began to deliver Twin A vaginally. Twin A was in a breeched position, and her head "remained trapped in the birth canal until the delivery doctor, Dr. Rachana Sutaria, arrived to fully deliver [her]." After being delivered, Twin A did not breathe or cry; she required resuscitation and was admitted into the neonatal intensive care unit ("NICU"). While being treated in the NICU,Twin A was diagnosed with "Grade III-IV intraventricular hemorrhage and hydrocephalus." Twin A was transferred to another hospital "to undergo a hydrocephalus shunt." On or about August 9, 2016, "after no signs of improvement or response," Twin A passed away.

Following Twin A's delivery, Twin B was delivered by "a STAT C-section." Twin B was also admitted into the NICU where she stayed for about two and a half months. Twin B was discharged on or about September 16, 2016.

Feathers brings health care liability claims against Dr. Whitmire, Dr. McNeil, and Nurse Gelera for negligence. Feathers alleges that Dr. Whitmire was negligent in:

• Failing to recognize and manage Feathers' pregnancy with the twins as a high-risk pregnancy;

• Failing to recognize, diagnose, and treat Feathers' preterm labor;

• Failing to diagnose Feathers as susceptible to premature rupture of membranes ("PROM") after she presented with systemic signs of PROM;

• Failing to properly treat Feathers in order to prevent PROM;

• Failing to counsel Feathers regarding the impact of PROM and the potential risks and benefits of expectant management; and

• Failing to admit Feathers to a hospital after she presented with signs of preterm labor.

According to Feathers, Dr. Whitmire's negligent acts and omissions directly and proximately caused her injuries and damages.

As to Dr. McNeil, Feathers alleges that she was negligent in:

• Failing to diagnose and treat Feathers' preterm labor;

• Failing to diagnose Feathers as susceptible to PROM after she presented with systematic signs of preterm labor;

• Failing to administer glucocorticoids during gestation to accelerate fetal lung maturity when Feathers presented with signs of preterm labor;

• Failing to properly treat Feathers in order to prevent PROM;

• Failing to admit Feathers after she presented with signs of preterm labor; and

• Prematurely discharging Feathers from Memorial Hermann.

According to Feathers, Dr. McNeil's negligent acts and omissions directly and proximately caused her injuries and damages.

As to Nurse Gelera, Feathers alleges that she was negligent in:

• Failing to identify Feathers' symptoms as risk factors for preterm labor;

• Failing to properly assess Feathers after she presented with systemic signs of preterm labor;

• Failing to properly treat Feathers in order to prevent PROM;

• Failing to follow proper policies and procedures in evaluating and assessing a patient with systemic signs of preterm labor; and

• Prematurely discharging Feathers from Memorial Hermann and failing to initiate the chained command to prevent Feathers from being discharged from Memorial Hermann.

According to Feathers, Nurse Gelera's negligent acts and omissions directly and proximately caused her injuries and damages.

Feathers also brings health care liability claims against Memorial Hermann for negligence. Regarding Feathers' direct-liability negligence claim against Memorial Hermann, Feathers alleges that it was negligent in:

• Failing to identify Feathers' symptoms as risk factors for preterm labor;

• Failing to diagnose Feathers as susceptible to PROM after she presented with systemic signs of preterm labor;

• Failing to properly treat Feathers in order to prevent PROM;

• Failing to admit Feathers after she presented with signs of preterm labor;

• Failing to have policies and procedures in place for properly diagnosing and treating a patient with systemic signs of preterm labor; and

• Failing to have proper policies and procedures in place for discharging a patient who presents with systemic signs of preterm labor.

According to Feathers, Memorial Hermann's negligent acts and omissions directly and proximately caused her injuries and damages. Feathers also alleges that Memorial Hermann is vicariously liability for the negligent acts and omissions of its actual and ostensible agents, employees, vice principals, borrowed servants, and limited partners. These, according to Feathers, include Nurse Gelera and Dr. McNeil.

As to damages, Feathers alleges that as a result of the above negligent acts and omissions by appellants, she, individually, suffered loss of companionship, past and future mental anguish, and future medical expenses related to the care andtreatment of Twin B. Feathers, on behalf of the estate of Twin A, suffered physical pain and mental anguish prior to death, death, reasonable and necessary medical expenses, and funeral and burial expenses. And Feathers, as next of friend of Twin B, suffered past and future physical pain and mental anguish, past and future disfigurement, past and future physical impairment, future medical expenses, and loss of future earning capacity.

To support her claims, Feathers timely served upon appellants a medical expert report authored by Michael L. Hall, M.D., FACOG.⁴ In his report, Dr. Hall states that he is a physician and a Board-Certified Obstetrician-Gynecologist. He is currently licensed to practice medicine in the State of Colorado. Dr. Hall received his medical degree from the University of Oregon Health Sciences Center in Portland, Oregon. He did a year internship in Obstetrics and Gynecology at St. Joseph Hospital in Denver, Colorado, and he completed his residency in Obstetrics and Gynecology there. He is certified by the American Board of Obstetrics and Gynecology, is a fellow of the American Board of Obstetrics and Gynecology, and is on the active staff of St. Joseph Hospital, Presbyterian-St. Luke's Hospital, and Rose Memorial Medical Center in Denver, Colorado. He has either served as, or iscurrently serving as, a Clinical Instructor with the Department of Obstetrics and Gynecology at St. Joseph Hospital, a Clinical Instructor and Consultant with the Department of Family Practice at St. Anthony Central Hospital in Denver, Colorado, a Clinical Instructor and Consultant with the Department of Family Practice at Swedish Medical Center in Englewood, Colorado, a Clinical Instructor in the Department of Obstetrics and Gynecology at the University of Colorado Health Sciences Center School of Medicine, and an Assistant Clinical Professor in the Department of Family Medicine at the University of Colorado Health Sciences Center School of Medicine. He is a member of the Denver Medical Society, the Colorado Medical Society, the Central Association of Obstetrics and Gynecology, the American Institute of Ultrasound in Medicine, the Colorado Obstetrics and Gynecology Society, and the American Medical Society.

Dr. Hall states that he currently practices medicine and was practicing medicine when Feathers' claims arose. As part of his medical practice, he has been involved in, and is currently involved in, the diagnosis, care, and treatment of pregnant patients with twin pregnancies, i.e., patients with a condition that is the same or similar to that experienced by Feathers. He...