

Opinion issued August
11, 2011

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00569-CV
————————————
Ronnie Tejada and Rose Tejada as next friend of
Kelsey Tejada and Kaylie Tejada, Appellants
V.
Virgilio Gernale, Appellee
 

 

 
On Appeal from 172nd District Court
Jefferson
County, Texas

Trial Court Cause No. E-180,269
 

 
O
P I N I O N
          In
this medical-malpractice case, Ronnie and Rose Tejada appeal the trial court’s
summary judgment favoring appellee, Virgilio Gernale, M.D.  The Tejadas contend that trial court erred by
granting summary judgment because they timely filed their claims within the applicable
limitations period, a res judicata defense with respect to an earlier filed
federal suit is without merit, and they raised a fact issue that Gernale’s
negligence proximately caused their injuries.  We conclude that (1) Gernale has not
conclusively proved that limitations bars his alleged acts of negligence; (2)
Gernale was not a party or in privity with a party to the earlier federal case,
precluding a judgment based on res judicata; and (3) a fact issue exists as to
whether Gernale’s negligence caused Tejada’s injuries.  We
therefore reverse and remand for further proceedings.
Background
          From November 2004 to October 2005, Ronnie
Tejada was incarcerated in the Jefferson County Jail.  During that time, NaphCare, Inc. administered
medical care for the inmates under a contract with Jefferson County.  NaphCare in turn hired Gernale to provide
physician services.  
          On intake, Tejada reported to NaphCare
personnel that, four years before, he had fallen from a height of 45 feet,
necessitating the installation of plates in his skull, and that he was blind in
his right eye.  He reported that he had a
personal history of diabetes but that he had no current problems with the
disease and was not taking any diabetic medication.  Tejada weighed 165 pounds.  NaphCare personnel recorded these details in Tejada’s
medical chart.  
          In December, Tejada completed a health-services-request
form, in which he complained of a number of loose teeth.  A dentist diagnosed him as having periodontal
disease; however, Tejada refused any teeth extractions.  In January, Tejada explained that a baseball
had struck the right side of his head and that the plates on that side were
hurting and sore.  Tejada also complained
of deteriorating vision in his left eye and pain in his left wrist, right hand,
and left leg.  A physician prescribed naproxen,
a pain reliever.  In mid-February, Tejada
again complained that his plates were hurting and sore, and he requested that
his brain surgeon be contacted to treat him. 

On February 21, 2005, Gernale reviewed Tejada’s chart after
a nurse informed him that Tejada had refused the pain reliever.  On February 22, Gernale examined Tejada for
the first time.  Tejada reported that a
prior doctor had instructed him not to take any pain medication.  Gernale was aware of Tejada’s history of
diabetes, his head pain, and his recent dental issues.  Yet, Gernale did not perform a blood sugar
test to determine if Tejada’s diabetes was under control. He discharged the
pain medicine order and ordered that Tejada not be scheduled for another
doctor’s appointment unless he was willing to take pain medication.
          Three days later, on February 25,
Tejada complained of continuing deterioration of vision in his left eye and worsening
pain near his skull plates.  Two day
later, on February 27, Tejada reported having lost between 20 and 25 pounds,
and he requested a soft diet.  
In early and mid-March, Tejada had two appointments with
Gernale.  On both occasions, Gernale
examined Tejada but did not check Tejada’s blood sugar level.  In late-March, Gernale ordered Tejada a soft
diet, and he referred Tejada to an outside neurologist to address Tejada’s head
pain.  In early April, the outside
neurologist refused to see Tejada, saying that Tejada instead needed to see a
neurosurgeon.  That same day, Gernale
signed an order referring Tejada to a neurosurgeon.
          In early May, complaining that he was
losing too much weight, Tejada requested a double portion of food.  
          On May 3, a nurse notified Gernale
that NaphCare had been unable to find a neurosurgeon who would see Tejada.  The next week, Tejada again complained of head
pain.  On May 5, Gernale ordered the
nurses to weigh Tejada and, if he weighed significantly less than 165 pounds,
to give him a double-portion diet for the next 90 days.  After weighing him, the nurses subsequently placed
Tejada on a double-portion diet.  
On May 22, Tejada completed another health-services-request
form, yet again complaining of head pain. 
Tejada insisted that he needed help immediately and asked to see his
brain surgeon.  On May 27, Tejada had his
fourth and final appointment with Gernale. 
Like before, Gernale did not perform a blood sugar test.  
          On July 12, Gernale conducted a chart
review, but he did not meet with Tejada. 
Citing the inability to find a neurosurgeon willing to accept Tejada
because he was an inmate, Gernale cancelled his standing order referring Tejada
to a neurosurgeon and ordered that Tejada be sent to the emergency room if an
emergency developed.  In full, Gernale
wrote:
Chart
Review Only — [Patient] have not sent[1] any SCR[2] about brain problems — Can’t get anybody locally to
evaluate the patient / was seen by a neurologist but it should have been a
neurosurgeon, no neurosurgeon will accept this patient because he is an
inmate.  
Plan.  Cancel previous
referral to a neurosurgeon, will send [patient] to ER for any emergency
situation / concerns.
          On October 4, Tejada complained to a
nurse that he could not void, was blind, had “right side pain,” and had not
eaten in four days.  On October 5, Tejada
was very weak and, when attempting to stand, he fell to the floor.  Tejada reported that he had not eaten in five
days.  Tejada was then transported to the
emergency room at St. Elizabeth Hospital, suffering from dehydration and
malnutrition. A blood sugar test revealed that he was in a state of severe
hyperglycemia, with a blood sugar level of 460 mg/dL.  Within a month, doctors amputated both of
Tejada’s legs blow the knees.
          In June 2006, the Tejadas filed suit
in federal district court against NaphCare, Jefferson County, and others, arising
out of his treatment while incarcerated at Jefferson County Jail.  In May 2007, the Tejadas moved to join
Gernale as an additional defendant, but the federal court denied the Tejadas’
motion.  A jury later returned a verdict
in favor of the federal-court defendants, and the federal court rendered a
take-nothing judgment.
          Meanwhile, on July 11, 2007, the
Tejadas notified Gernale in writing of their health-care-liability claims
against him in compliance with Chapter 74 of the Texas Civil Practices and
Remedies Code.  On September 24, the
Tejadas sued Gernale, asserting that he negligently failed to test for, treat,
or follow up on Tejada’s disclosed diabetes. 
The Tejadas filed their suit 2 years and 74 days after July 12, 2005,
the date Gernale reviewed Tejada’s chart and cancelled his order referring
Tejada to a neurosurgeon.
          The Tejadas’ expert, Philip Raskin, an
endocrinologist specializing in the treatment of diabetes, testified that
Gernale’s negligence in failing to diagnose Tejada’s diabetes—which could have easily
been confirmed with a simple blood sugar test—caused Tejada’s injuries.  
          Gernale then moved for summary
judgment, asserting that the statute of limitations and res judicata conclusively
bar the Tejadas’ claims and that no evidence exists that Gernale’s negligence caused
Tejada’s injuries.  Responding to Gernale’s
motions, the Tejadas attached an affidavit from Raskin.  In the affidavit, Raskin stated that Gernale
breached the applicable standard of care on July 12, when, after reviewing
Tejada’s medical chart—a chart revealing that Tejada had a history of diabetes
and was then exhibiting a number of severe diabetic symptoms—he failed to order
Tejada’s blood sugar level be tested and discontinued any follow-up absent
presentment to an emergency room.  Raskin
had testified earlier in his deposition, however, that the last date Gernale
“committed medical malpractice” against Tejada was May 5, when Gernale ordered
the nurses to weigh Tejada and, if he weighted significantly less than 165
pounds, to give him a double-portion diet for the next 90 days.  In light of this testimony, Raskin averred, “After further
consideration of the medical records [I realize that] I made [the deposition]
statement [regarding the last date of malpractice] in error.”  
Standard
of Review
An
appellate court reviews de novo a trial court’s ruling on a motion for summary
judgment.  Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009).  A court
considers the summary-judgment evidence in the light most favorable to the
nonmovant.  Id.  To prevail on a motion for traditional summary judgment, a
movant must establish that there is no genuine issue of material fact so that
the movant is entitled to judgment as a matter of law.  Tex.
R. Civ. P. 166a(c); Mann Frankfort
Stein, 289 S.W.3d at 848.  After an
adequate time for discovery, a party may move for no-evidence summary judgment
on the ground that no evidence exists of one or more essential elements of a
claim or defense on which the adverse party bears the burden of proof at trial.  Tex.
R. Civ. P. 166a(i); see Flameout
Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830,
834 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  The trial court must grant the motion unless
the nonmovant presents more than a scintilla of evidence raising a genuine
issue of material fact on each element specified in the motion.  Tex.
R. Civ. P. 166a(i); Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997) (“More than a scintilla of evidence exists when the evidence supporting
the finding, as a whole, ‘rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.’”) (quoting Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995)); Flameout
Design, 994 S.W.2d at 834.  
Statute
of Limitations
          The Tejadas contend that they filed
their claims within the limitations period because July 12 was an ascertainable
date on which Gernale committed malpractice by failing to order a blood sugar
test or alternatively because it was the last day of a course of
treatment.  Gernale responds that he did
not conduct a patient visit with Tejada on July 12; that, as a matter of law, a
physician can breach a standard of care to conduct diagnostic testing only on a
date that the physician actually examines the patient in person; and that the July
12 chart review and orders here do not constitute a patient visit.  Gernale alternatively responds that the
Tejadas’ expert’s affidavit contradicts the expert’s earlier deposition testimony
that May 5 was the last date that Gernale committed malpractice.
          A.      Limitations Period
for Health-Care-Liability Claims
          A health-care-liability claim has a
two-year limitations period.  Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a)
(West 2005).  The statute tolls the
limitations period for 75 days if the claimant notifies the physician of the
claim against the physician in the manner that Chapter 74 requires.  Id. § 74.051(c)
(West 2005); Rubalcaba v. Kaestner,
981 S.W.2d 369, 373 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see Rowntree
v. Hunsucker, 833 S.W.2d 103, 108 (Tex. 1992).[3]
          We measure the limitations period from
(1) the date that the breach or tort occurred, (2) the last date of a course of
treatment for a particular condition, or (3) the last date of a hospitalization
for which a claim is made.  Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a);
Rowntree, 833 S.W.2d at 104.  If we can ascertain the date the alleged beach
or tort occurred, then the limitations period must be measured from that date; inquiry
into the second and third potential dates is unnecessary and immaterial.  Id.
          Because the applicable limitations
period is 2 years long and tolled for 75 days, we examine the last date that
Gernale was involved in Tejada’s medical care—July 12, 2005—as the only potential
date from which limitations had not run by the time the Tejadas notified
Gernale of their claims.  See Tex.
Civ. Prac. & Rem. Code Ann. § 74.251(a); Rubalcaba, 981 S.W.2d at 373.        The
Tejadas assert that Gernale was negligent on July 12, 2005, when Gernale
reviewed Tejada’s chart, discharged his standing order referring Tejada to a
neurosurgeon, failed to order a blood sugar test, and ordered that Tejada be
sent to the emergency room in an emergency. 
According to Raskin, on July 12, Tejada’s medical chart showed a history
of diabetes and a number of severe diabetic symptoms that Tejada was then
exhibiting.  Raskin opined that an
adequate review of a Tejada’s medical chart on July 12, 2005—a chart revealing
a history and classic symptoms of diabetes—would prompt a reasonably prudent
physician to order the patient’s blood sugar level be tested to determine if
his blood sugar was under control.  Raskin
concluded that after reviewing Tejada’s medical chart, Gernale breached the
applicable standard of care by failing to order Tejada’s blood sugar be tested.  It is undisputed that on July 12, Gernale
possessed the authority to order a nurse or nurse’s aide to perform a blood sugar
test on Tejada.  Instead, Gernale
cancelled his order referring Tejada for further medical care and instituted a
new plan that ordered that Tejada be taken to an emergency room for any
emergent medical needs.
          Gernale responds that a physician cannot
breach a standard of care to conduct diagnostic testing unless the physician
actually examines the patient and thus his July 12 chart review is insufficient
to constitute a breach of the standard of care or the last date of a course of
treatment.  Gernale cites the following
cases for support:  Shah v. Moss, 67 S.W.3d 836, 844–45 (Tex. 2001); Husain
v. Khatib, 964
S.W.2d 918, 919 (Tex. 1998); Bala v.
Maxwell, 909 S.W.2d 889, 892 (Tex. 1995); Chambers v. Conaway, 883 S.W.2d 156, 159 (Tex. 1993); Rowntree, 833 S.W.2d at 108; Streich v. Dougherty, No. 13-05-00064-CV,
2008 WL 5191309, at *3 (Tex. App.—Corpus Christi Dec. 11, 2008, no pet.).  
          In Rowntree,
the plaintiffs alleged that the defendant–physician failed to diagnose a
patient’s occluded arteries, which led to a debilitating stroke.  Rowntree,
833 S.W.2d at 103–04.  The Texas Supreme
Court explained that the physician “could have breached this duty only on those
occasions when he had opportunity to perform . . . examinations.”  Id.
at 108.  Thus, “the date of the alleged
wrongful act . . . , [as] ascertainable from the facts of
the case, was the last visit that [the patient] paid to [the physician’s]
office.”  Id.  This was true despite evidence
that the patient had called the physician’s office for medication refills after
her last office visit.  See id. at 104.  
          The Tejadas’ allegations are
distinguishable from Rowntree in two
respects:  First, unlike the necessary examination
in Rowntree, Gernale could have ordered
testing of Tejada’s blood sugar upon a review of his chart, even without
conducting an in-person patient examination. 
Second, unlike a prescription refill, which continues a prescribed
course of treatment, on July 12, Gernale reviewed Tejada’s then-existing
medical condition, and he instituted a new “plan” of treatment—to discontinue planned,
additional medical follow up of Tejada’s complaints absent an emergency.
          In Chambers,
the plaintiffs alleged that the defendant–physician negligently failed to
diagnose a patient’s breast cancer after initial testing indicated that her
lump was benign.  883 S.W.2d at 157.  The Texas Supreme Court explained that a
physician may be liable for a failure to diagnose a condition “up to the last
appointment between them,” even if that appointment was unrelated to the
negligence claim but that the limitations period could not toll indefinitely
until discovery of the condition.  Id. at 157–58.  In contrast to the July 12 chart review here,
the plaintiffs in Chambers did not
allege that the physician undertook any medical diagnosis or developed any plan
of treatment after the last office visit. 
See id. at 156.  
          In Bala,
the plaintiffs alleged that the defendant–physician negligently failed to
diagnose a patient’s cancer.  See 909 S.W.2d at 890.  The Texas Supreme Court held that the
physician’s negligent failure to conduct follow-up procedures could have
occurred in connection only with patient examinations before the examination
that led to the proper diagnosis.  Id. at 892.  As in Chambers,
and unlike the present case, there was no allegation that the physician’s
negligence stemmed from anything other than a patient visit because no other
evidence of medical decision-making existed in the record.  See id.

          In Husain,
the plaintiffs alleged that the defendant–physician was negligent by not taking
actions that would have lead to earlier discovery of the patient’s cancer.  964 S.W.2d at 919.  The Texas Supreme Court explained that “[t]hose
events, or non-events, occurred on specific ascertainable dates: January 25,
1990, and September 26, 1991.”  Id. at 920.  On January 25, the physician spoke with the
patient to inform her of the results of a prior mammogram, and the physician
referred the patient to another physician. 
Id. at 919.  Husain
suggests that a physician can breach a duty to perform follow-up tests on a
specific date even without an in-person patient visit if the claim alleges an
error in the medical judgment related to the physician’s medical diagnosis or
plan of care executed on a given day.  See also Garrett v. Harris County Hosp.
Dist., No. 01-07-00836-CV, 2008 WL 3522258, at *3 (Tex. App.—Houston [1st
Dist.] Aug. 14, 2008, no pet.) (mem. op.) (hospital “breached its duty to
disclose [the patient’s] biopsy results by failing to communicate the results
reasonably promptly after obtaining them”). 

          In Shah,
the plaintiff–patient alleged that the defendant–physician negligently failed
to provide weekly or monthly follow-up visits after performing surgery on his
eye.  67 S.W.3d at 844.  The Shah
court held that limitations ran from the last follow-up visit actually
conducted, not from the last office visit—a routine yearly eye exam—which
occurred a year later.  Shah, 67 S.W.3d at 845.  The court explained that this conclusion was
compelled by the standard of care as alleged by the patient’s expert, which
required follow up at a much earlier time to prevent the injury alleged.  See id.
 
          In pinning the limitations period to
the last office visit, Gernale suggests that reasonable minds could not
disagree about the character of his July 12 chart review and order.  We disagree. 
Some evidence exists that, on July 12, when Gernale reviewed Tejada’s
medical condition, he changed his “plan” of treatment for Tejada—discharging
his standing order referring Tejada to a neurosurgeon—and ordered Tejada be
sent to the emergency room only in an emergency, without ordering any testing
of Tejada’s blood sugar despite worsening charted symptoms consistent with
diabetes.  We hold that that the Tejada’s
suit alleges acts of medical negligence on July 12, 2005, a readily
ascertainable date within the limitations period; thus, the record does not
support summary judgment based on the statute of limitations.
          B.      Summary-Judgment
Evidence
Finally,
Gernale contends that we must disregard Raskin’s affidavit as a “sham”
affidavit supporting a fact issue on limitations when compared with Raskin’s
earlier deposition testimony about the “last date” of medical malpractice.  Raskin testified in his deposition that the
last date malpractice occurred was May 5, the date Gernale ordered a
double-portion diet for Tejada if he weighed significantly less than 165 pounds
without checking his blood sugar level.  Raskin’s
later affidavit sets forth negligent acts on July 12, the chart-review date.
A
statement in an affidavit fails to raise a genuine issue of material fact if
(1) the statement clearly contradicts the affiant’s earlier deposition
testimony on a material point, (2) the affidavit is executed after the
deposition was taken, and (3) the affidavit fails to explain the reason for the
change.  Pando v. Sw. Convenience Stores, L.L.C., 242 S.W.3d 76, 79 (Tex.
App.—Eastland 2007, no pet.); Eslon
Thermoplastics v. Dynamic Sys., Inc., 49 S.W.3d 891, 901 (Tex. App.—Austin
2001, no pet.); Farroux v. Denny’s Rests.,
Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.).  Raskin’s affidavit explains the difference between
his deposition testimony and his affidavit regarding the last date of
malpractice: “After further consideration of the medical records [I realize
that] I made [the deposition] statement in error.”  In Farroux,
this Court explained, “For example, an affiant could explain that he was
confused in a deposition, or that he discovered additional, relevant materials
after the deposition.”  See Farroux, 962 S.W.2d at 111 n.1.  We note that the trial court did not strike
Raskin’s affidavit as a sham.  Given that
the trial court considered the affidavit as summary-judgment evidence and Raskin
proffered an explanation for the change, we decline to strike the affidavit on
appeal.  
Res Judicata
          Gernale next contends that (1) the
Tejadas’ state-law claims concerns the same nucleus of operative facts as the
claims litigated in the federal action, (2) the Tejadas could have asserted
their state-law claims in federal court under the court’s pendant jurisdiction,
and (3) privity exists between himself and NaphCare because NaphCare adequately
represented his interests in the federal action so as to be his “virtual
representative.”
          A.      Applicable Law
          The claim-preclusive effect of a
federal-court judgment on a federal-question claim is determined by federal res
judicata principles.  Semtek Int’l. Inc. v. Lockheed Martin Corp.,
531 U.S. 497, 507, 121 S. Ct. 1021, 1027 (2001); see John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90
S.W.3d 268, 287 (Tex. 2002).  Under the
doctrine of res judicata, a party is precluded from litigating a claim in a
pending action if (1) in a previous action, a court of competent jurisdiction
rendered a final judgment on the merits of a claim, (2) the parties that
litigated the prior claim are identical to or in privity with the parties
litigating the pending claim, and (3) the pending claim (a) is identical to the
prior claim or (b) arises out of the same nucleus of operative facts as did the
prior claim and could have been litigated in the previous action.  In re
Paige, 610 F.3d 865, 870–72 (5th Cir. 2010); see also Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th
Cir. 1992) (“A non-party defendant can assert res judicata so long as it is in
‘privity’ with the named defendant.”).  For
res judicata purposes, “privity” exists if (1) a nonparty agrees to be bound by
the determination of issues in an action between others; (2) a pre-existing
substantive legal relationship governs a nonparty and a party to a judgment;
(3) a party with the same interests adequately represents a nonparty in a prior
action; (4) a nonparty assumes control over the litigation in the prior action;
(5) a nonparty serves as proxy for a party to a prior action; or (6) a special
statutory scheme expressly forecloses successive litigation by nonlitigants and
claim preclusion is otherwise consistent with due process.  Taylor
v. Sturgell, 553 U.S. 880, 893–95, 128 S. Ct. 2161, 2172–73 (2008); id. at 885, 128 S. Ct. at 2167 (disapproving
of doctrine of “virtual representation”).  

­          B.      Analysis
          The Tejadas premised their federal-law
claims against NaphCare on allegations that it acted with deliberate
indifference to Tejada’s medical and nutritional needs, including depriving him
of adequate medical treatment.  Gernale
contends that his interests could have been adequately represented by Naphcare
in the prior suit.  He concludes that
both he and NaphCare had a shared interest to provide appropriate care and,
thus, to defend that care against claims of negligence.  But Gernale has failed to show that NaphCare
understood itself to be acting in any representative capacity or that the
federal district court viewed anyone as representing or protecting Gernale’s
interests.  See id. at 900, 128 S. Ct. at 2176 (“A party’s representation of a
nonparty is ‘adequate’ for preclusion purposes only if, at a minimum: (1) the
interests of the nonparty and her representative are aligned, and (2) either
the party understood herself to be acting in a representative capacity or the
original court took care to protect the interests of the nonparty.”) (internal
citations omitted).  Additionally, nothing
indicates that the federal-court judgment, if unfavorable, would have bound
Gernale.  Accordingly, we hold that
Gernale failed to show that he is entitled to judgment as a matter of law on
his affirmative defense of res judicata.
Evidence
of Causation
          In his motion for no-evidence summary
judgment, Gernale asserted that there was no evidence of the causation-in-fact element
of proximate cause.  The Tejadas contend that summary judgment
on this basis is improper, because they have raised some evidence that
Gernale’s negligence caused Tejada’s injuries.
          A.      Applicable Law
          In a medical malpractice case, the
plaintiff must prove that (1) the defendant owed him a duty to act according to
an applicable standard of care, (2) the defendant breached the applicable
standard of care, (3) he suffered an injury, and (4) within a reasonably
medical probability, the defendant’s breach proximately caused his injury.  Mariner
Health Care of Nashville, Inc. v. Robins, 321 S.W.3d 193, 205 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). 
Proximate cause has two components: causation in fact and
foreseeability.  W. Invs. Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).  “The test for cause in fact is whether the
act or omission was a substantial factor in causing the injury without which
the harm would not have occurred.”  Id.  Evidence
that shows only that the defendant’s negligence furnished a condition that made
the injuries possible is insufficient to show proximate cause.  Id.  Proximate cause cannot be established by mere
conjecture, guess, or speculation.  Id. 
In a medical malpractice case, proximate cause must be established
through expert testimony.  Robins, 321 S.W.3d at 205.
          B.      Analysis
          Raskin opined that Tejada suffered
from diabetes during the duration of his incarceration at Jefferson County Jail
based on Tejada’s then-existing symptoms and past medical history.  Upon being transferred to St. Elizabeth’s
hospital, Tejada suffered from severe hyperglycemia, with a blood sugar level
of 460mg/dL.  Tejada was in a state of
diabetic ketoacidosis, which Raskin explained meant that his body was burning
fat because it did not have any insulin. 
Raskin explained that a blood sugar test would have confirmed a diabetic
diagnosis.  Less than two weeks later,
Tejada had developed progressive ischemia (lack of blood) and gangrene (tissue
death) in his left leg.  Raskin testified[4]
that Tejada’s untreated diabetes caused the ischemia and gangrene and weakened
his immune system, rendering him susceptible to infection, sepsis, and
pneumonia.  Raskin testified that in his
opinion, based on a medical probability, the cause of Tejada’s amputations was
uncontrolled diabetes.  Raskin further
testified that intervention at any point during Tejada’s incarceration would
have averted the outcome of amputation.  Raskin
concluded, “If Tejada had been diagnosed with diabetes and properly treated
and/or referred to the proper physicians, it is my opinion, within a reasonable
degree of medical probability, that the ischemia, gangrene, the lack of oxygen
below both of Mr. Tejada’s knees, and eventual bilateral amputation of his legs
would not have occurred.”
          Based on Raskin’s expert opinion, we
conclude that the Tejadas have raised a fact issue as to whether, in developing
the July 12 plan of treatment, Gernale’s alleged failure to properly evaluate
Tejada’s worsening symptoms, order a blood sugar test, or institute a treatment
plan that accorded with a reasonable standard of care for patients with
diabetes, caused Tejada’s injuries. 
Thus, the trial court’s summary judgment does not stand on this basis.
Conclusion
 
Because Gernale has failed to show that
his affirmative defenses of limitations and res judicata bar the Tejadas’
claims, and some evidence exists to show that Gernale’s alleged acts of
negligence caused Tejada’s injuries, we conclude that the record does not
support the trial court’s summary judgment. 
We therefore reverse that judgment, and remand for further proceedings.  
 
 
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Bland.




[1]           In his
deposition, Gernale read this word as “seen.”


[2]           In his
deposition, Gernale read this abbreviation as “sick per request.”  Elsewhere, Gernale explained that SC means
“sick call.”  This sentence seems to
indicate that Tejada had not sent any additional sick call requests.  


[3]           At the outset, the Tejadas contend that, regardless of when
it began to run, the limitations period was tolled while the federal suit was
pending, pursuant to section 16.064(a) of the Texas Civil Practices and
Remedies Code.  Section 16.064(a) states:
The period between the date of filing
an action in a trial court and the date of a second filing of the same action
in a different court suspends the running of the applicable statute of
limitations for the period if:
(1)       
because of lack of jurisdiction
in the trial court where the action was first filed, the action is dismissed or
the judgment is set aside or annulled in a direct proceeding; and
(2)       
not later than the 60th day
after the date the dismissal or other disposition becomes final, the action is
commenced in a court of proper jurisdiction.
Tex.
Civ. Prac & Rem. Ann. § 16.064(a) (West
2008).  Recognizing that section 16.064
applies to dismissals for a lack of jurisdiction, the Tejadas contend that it
nonetheless applies here under Vale v.
Ryan, 809 S.W.2d 324, 327 (Tex. App.—Austin 1991, no writ) (“[F]or purposes
of the applicability of section 16.064, a federal court’s refusal to exercise
jurisdiction over a pendent state claim is tantamount to a dismissal for lack
of jurisdiction.”).  In Vale, the federal court granted the
plaintiff’s motion for leave to add the additional defendant, against whom she
asserted a state-law claim.  Vale, 809 S.W.2d at 325 & n.2 (date
motion is filed functions as date of filing for purposes of section
16.064).  The federal court subsequently
dismissed the state-law claim as it applied to the added defendant but not as
to the remaining parties.  Id. at 325.  In contrast, the Tejada’s state-law claims
were never filed in federal court, and Gernale was never a party to that suit
because the federal court refused to grant leave to add Gernale as a
defendant.  Accordingly, section 16.064
is inapplicable.  See Tex. Civ. Prac &
Rem. Ann. § 16.064(a).


[4]           During his deposition, Raskin testified that his testimony
from the prior trial and his experts reports accurately reflect his opinion
concerning Gernale’s malpractice. 
Gernale did not object to the Tejadas’ use of Raskin’s prior testimony
or his expert reports as summary-judgment evidence.  


