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Suing a Surgeon for Medical Malpractice and Wrongful Death in Texas

spinal-tap-1197804-e1449546976709In Pisharodi v. Saldana, a Texas appellate court considered a medical malpractice case arising out of a 54-year-old woman’s death. The lawsuit was brought by the woman’s surviving children against the woman’s neurosurgeon. The neurosurgeon had treated the pain suffered by the woman in her lower back. He prescribed physical therapy, and when that didn’t work, he recommended an epidural pain block and injection in the L4-L5 part of her spine instead of surgery. He performed the procedure on her using morphine, depo medrol, a steroid, and a local anesthetic.

After the procedure, she returned to the neurosurgeon’s office still in pain. Accordingly, he performed a posterior lumbar decompression with a discectomy, fusion, and instrumentation. He discharged her five days after this procedure, sending her to rehabilitation.

Several months later, she came back, complaining once again about lower back pain. He recommended another epidural steroid injection. The same combination of medications was used as the first time. After the procedure, he left her at the clinic and went to assist with a surgery. Later, he got a phone call from his office telling him that she was nauseated and diaphoretic. Emergency services were called. She tried to talk and collapsed without a pulse. The clinic tried cardiopulmonary resuscitation.

EMS arrived and took her to a medical center. Later, the neurosurgeon would testify that he instructed the personnel not to administer the reversing drug Narcan to her because she hadn’t been given morphine. The ER physician noted that she arrived in cardiorespiratory arrest after an administration of duramorph via epidural. At trial, the neurosurgeon would deny this fact.

At the hospital, the decedent’s condition stabilized, but she suffered seizures in her brain and had to be sedated. The family asked that her care be transferred to another neurosurgeon. The defendant diagnosed her with anaphylactic shock following a repeat epidural pain block. The second neurosurgeon performed an apnea test. He noted that she’d suffered brain death and that her prognosis was extremely poor. When he said there was no surgical option, the family directed him to disconnect her life support. She continued to breathe on her own but died the next day.

At the autopsy, the pathologist concluded there were no signs of an anaphylactic reaction to the epidural or signs of a heart attack. In her opinion, the death arose out of complications, and the duramorph had been injected too deep into the space surrounding her spine. This got into her central nervous system and into her brain, causing her not to be able to breathe or her heart to beat.

The family sued the clinic and later the first neurosurgeon individually for negligence. The neurosurgeon filed for summary judgment on the grounds that any claims against him individually were barred by the statute of limitations, which was two years. This motion was denied. At trial, the jury found the first neurosurgeon 62% liable and the second neurosurgeon 40% liable for her death. The family was awarded $175,000 in medical expenses and $12,000 for funeral expenses. The first neurosurgeon and the clinic were found jointly and severally liable. They appealed.

On appeal, the plaintiff argued that Texas Rule of Civil Procedure 28 and the facts of the case defeated the defendants’ statute of limitations argument. Under this rule, any partnership, corporation, individual, or unincorporated association doing business under an assumed name may be sued under its assumed name for the purpose of enforcing a substantive right, but on motion by a party or the court, the true name may be substituted.

The appellate court explained that this means a plaintiff can sue an individual doing business under the name of a partnership, corporation, or association, even if that entity does not exist, and these entities could do business under an individual’s name and be sued under the assumed name. When an individual is sued in this way, and the individual has actual notice of the suit, the correct party can be substituted.

In this case, the first neurosurgeon operated the clinic under the name “Pisharodi Clinic.” The appellate court found there was evidence under which the trial court could conclude that the clinic could be sued in its assumed name and that the plaintiffs were permitted to amend the petition to add the doctor’s correct legal name.

The appellate court also concluded, among other things, that there was enough evidence to hold the Pisharodi Clinic jointly and severally liable and to find that the neurosurgeon had breached the standard of care, proximately causing the decedent’s death. The appellate court affirmed the judgment.

If your loved one dies due to medical malpractice, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you in a lawsuit for damages. Call our office for more information at 1-800-862-1260.

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