Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
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all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
Michael Sonnier worked as a charge nurse in the surgery department at Christus Good Shepherd Medical Center. He was there for ten years. That experience would provide him enough niche knowledge to determine who should do his hernia repair. In January 2020, he had the surgery. He experienced no complications.
When Sonnier awoke from the procedure, he discovered that, while he was under anesthesia, certain members of Christus’s staff had:
–placed a diaper on him “despite the fact that it [was] outside of the standard of care for most hernia patients to be placed in a diaper post-surgery”;
–taped a plastic baggie containing mixed nuts to the diaper and written, “These nuts!” on the baggie;
–signed the diaper, both inside and out, with messages such as, “Robin was here! Get well soon!” in the area of his genitals, and “poop shoot” on the buttocks;
–affixed a colostomy bag to him, even though his procedure and recovery did not require him to wear a colostomy bag; and
–again deviated from the standard of care by painting his toenails bright red.
Sonnier also alleged that, while recovering at home, he received text messages from one of the staff members that had cared for him, Alcox, who inquired how he was doing. When Sonnier replied that he was sore but doing well, Alcox texted, “Great. I guess you are not in pain are [sic] constipated!!!!!” Sonnier replied, “Not too bad,” to which Alcox texted, “That’s good. By the way, I did not paint your toenails . . . Anna did. I would have painted them better than that, but I did put the diaper on you, lol. Take care. I will check on you later.” Davis, another staff member who had cared for Sonnier, also exchanged text messages with him. Davis asked how he was doing and texted, “How’s the toe polish,” followed by a crying emoji.
Sonnier asserted claims against Christus for intentional infliction of emotional distress for placing him in a diaper, painting his toenails, and affixing the colostomy bag, which he alleged “went beyond any duties or responsibilities as a Medical Center.” He also asserted claims against Christus for assault, battery, and gross negligence based on this same conduct. Along with these direct claims, Sonnier asserted that Christus was vicariously liable for the actions of its employees.
Procedurally, the claim was characterized as a healthcare claim. But the plaintiff’s attorney did not file an expert report within 120 days of filing, as required by law (a Healthcare Liability Claim – HCLC – under the Texas Medical Liability Act.
Texas state appellate court dismissed claims against the hospital.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).
The Act defines an HCLC as: a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). Under this definition, an HCLC has three elements: (1) the defendant is a health care provider or physician; (2) the claimant’s cause of action is for treatment, lack of treatment or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant’s alleged departure from accepted standards proximately caused the claimant’s injury or death.
The Act’s language is broad.
“[A] claim based on one set of facts cannot be spliced or divided into both an HCLC and another type of claim.” Id. (citing Yamada, 335 S.W.3d at 197; Diversicare, 185 S.W.3d at 854). As a result, claims premised on facts that could support claims against a physician or health care provider for departures from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care are HCLCs, regardless of whether the plaintiff alleges the defendant is liable for breach of any of those standards. Id. (citing TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13)). This means that “we need not consider whether [Sonnier]’s claim[s] [are] for intentional infliction of emotional distress [and assault and battery], as stated in his pleadings,” because “a party cannot avoid Chapter 74’s requirements and limitations through artful pleading.” Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357, 363 (Tex. 2019) (citing Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004); Diversicare, 185 S.W.3d at 854).
In other words, if the allegations suggest the facts could be a healthcare claim, it IS a healthcare claim. And the rigid procedural requirements – such as providing an expert report within 120 days of filing – apply.
In this case, the plaintiffs tried to amend the complaint to something entirely unrelated to HCLC. But 120 days had already passed. The ship had sailed.
Here, …Sonnier has tried to evade the requirements of Section 74.351 by amending his petition after the expiration of the 120-day deadline and removing any allegations that Christus violated any standard of care for a hospital. Because only considering Sonnier’s amended petition may result in impermissibly allowing the claim to be “split or spliced into a multitude of other causes of action,” we must consider his original petition to determine whether “the gravamen or essence of a cause of action is a health care liability claim.”6 Yamada, 335 S.W.3d at 197.
In the original filing, Sonnier alleged that Christus departed from expected standards of healthcare and safety.
Sonnier alleged that, while he was under anesthesia, Christus’s employees placed a diaper on him “despite the fact that it [was] outside the standard of care for most hernia patients to be placed in a diaper post-surgery” and that they affixed a colostomy bag to him even though his procedure and recovery did not require him to wear a colostomy bag. These allegations recognize the possibility that, for at least some hernia patients, it is within the standard of care to be placed in a diaper post-surgery and that a colostomy bag may be required after some types of hernia surgeries. Thus, the gravamen of these complaints alleges a claimed departure from the accepted standards of medical care and health care.
In addition, Sonnier’s bare allegation that he had a hernia repair does not inform us of what type of hernia he had, and no medical records were produced to establish the nature of his hernia. It is not within the general knowledge of a layperson to know whether in the repair of Sonnier’s particular hernia or because of Sonnier’s reaction to the surgery or anesthesia, it would be within the standard of care to place him in a diaper post-surgery or to affix a colostomy bag. For that reason, expert health care testimony would be necessary to establish the appropriate standard of care regarding Sonnier’s hernia surgery and his post-operative care. The Texas Supreme Court has held that “if expert medical or health care testimony is necessary to prove or refute the merits of the claim against a physician or health care provider, the claim is a health care liability claim.” Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 182 (Tex. 2012).
You get the gist of it. In Texas, if you file a claim related to outrageous conduct in an operating room, from the outset you’d need to produce a timely expert report or avoid characterizing it as a healthcare liability claim (HCLC).
I expect the Board of Medicine and the Board of Nursing may have something to say about this case. Still, Sonnier is unlikely to see a payday unless he can (a) persuade the Texas Supreme Court to rule otherwise; or (b) sue his own attorney for legal malpractice. Likelihood of (b) > (a).
What do you think? Let us know your thoughts in the comments below.
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
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I feel bad for this person because it was obviously humiliating. I think there is a lot of context missing such as a coworker shenanigan which went too far. The details matter though the act regardless is not something current medicine is able to tolerate. Either way, there will likely be a fallout from the nursing and medical boards. Everyone lost here.
The OR is a tough environment. If you are thin skinned and easily offended, you need to stay away. I am an anesthesiologist, had a procedure done and woke up with a temporary tat on my behind. I laughed it off, because I am not a money grabbing snowflake. This is par for the course; don’t like it, go to another OR for your procedure. My guess, they felt comfortable doing this, as he was one of them… initially. But $$$ are tempting. This could have been addressed out of court. Again … $$$
It is completely unprofessional, no matter how you look at it. One Google review pertaining to this event, and the surgery center can call it quits. Attorneys notwithstanding.
Some people just can’t take a joke. And if he can’t, well, we all know the drill.
A pertinent question would be whether he ever involved himself in any such larks when friends of his were having surgery. If he always scrupulously avoided them, especially if he openly disapproved, then he might have a cause for a complaint. If, however, he had participated in any–to any degree–then he lost his privilege of casting the first stone.
Had he been a routine patient–a “civilian”–this would be well outside acceptable behavior on the part of anyone. Since he’s an insider, and since he was acquainted with the players, the area becomes very gray, and light gray at that. The fact that people openly told him what they did means that there was no malice involved. Poor taste, for sure, but mere poor taste isn’t legally actionable.
(If it were, many to most art museums would be out of business. Depending on where you sit, that might be a good thing or a bad thing.)
This nurse worked in that department. These were obviously his friends. They were playing a joke on him to make him feel better post surgery. This appeared to be done by his fellow nurses, not his surgeon. There was no physical harm done to the patient. The claim of emotional distress, hardly seems right since these were after all his friends.
All of that said, should this be done to a patient, any patient? NO!
Should this have resulted in a complaint under the circumstances? NO!
Was this in poor taste? YES!
It would be really hard to prove some emotional damage since the only person that would have seen any of this is the patient. The diaper was easily removed at home, and so was the toe nail polish. Everyone these days has a thin skin, and as such everyone is offended far too easily.
Should this be done to any patient? NO!
Should this be instructive to any future potential such future shenanigans? YES!
Thank goodness this case died because the patient’s attorney didn’t file within the 120 days.
This was the correct result in this case.
If this had happened to a non nurse in the OR, the results might have been different.
What happens if a glove is blown up into a balloon and a smiley face is drawn on it and given to a patient (small kid) leaving the operating room? If the kid wakes up and sees it and starts to cry, is the parent going to claim emotional distress?
Physicians and staff are required to be so circumspect in their behavior that they cannot be human. This has definitely impacted the way that physicians interact with patients. Now the physician is literally thinking they are going to get sued for any reason, at any time, even if everything goes perfectly. So glad that I am retired from medicine.
No doubt this suit was encouraged by the patient who ‘accidentally’ left their cellphone on record and captured disparaging remarks in the OR. As I recall, the judgement was substantial. In my opinion, the problem lies with the courts and their lack of wisdom. The cell phone case should have been decided with the judgement that yes the patient was ‘wronged’ and the remedy should have been an apology from those involved. Same thing here.
This lack of common sense clogs our court system with ‘lottery’ cases and increases the cost for everyone. The ultimate result is that people who really need the court system are priced out of process and true justice is not served.
Judith Martin (Ms. Manners) has an interesting take on issues like this. It is her stance that “we demand that the courts to take-over issues of decorum and traditional manners, regrettably because we no longer recognize consistent ‘manners’ in our society.”
Some of this is money, sure. Can you sue over manners and make money? I’m sure its happened. Emotional distress is the key to that, or so it would seem.
Because Abrahamic religions have been taken over by the new atheism, our society no longer has any rudder. This has caused enormous confusion, especially among young people who reject morality and redefine it as a labile “opinion.” It’s always shifting back and forth.
As healthcare workers, how do we behave? Medical boards are confused too. They are all too happy to take away your license, or force you to pay for and enter one of the their own profitable re-education programs if you “offend” them.
This case is an example of that confusion. I have written in the past that our educational programs are sometimes taken for granted by students who have a sense of entitlement. But these participants were not students.
Judith Martin would have a say on this: “Manners count.” A practical joke can become very impractical. It’s something to count on.
Michael M. Rosenblatt, DPM
I don’t think any of these shenanigans are funny, and I’m not sure why the operating surgeon allowed this. Attorney malpractice…