In its opinion dated April 30, 2020, the Court of Appeals Eighth District of Texas El Paso, Texas (“Texas Appellate Court”) affirmed the defense verdict for a consulting physician in a Texas medical malpractice case, holding that the plaintiff “has not identified, nor have we found, any statute or case law imposing on a consulting physician a nondelegable duty to give an attending physician information about a patient’s condition by having a direct physician-to-physician conversation. We decline to create such a nondelegable duty in the first instance.”
The Underlying Facts
A neurosurgeon performed surgery on the plaintiff’s neck on November 14, 2013. By 3 p.m. that afternoon, the plaintiff was exhibiting symptoms possibly indicating spinal compression. At 4:30 p.m., hospital staff notified the neurosurgeon regarding the plaintiff’s symptoms. Due to the plaintiff’s worsening symptoms, the hospital staff called the neurosurgeon again at 11:10 p.m. about the plaintiff’s symptoms. The plaintiff’s symptoms continued to worsen.
The defendant consulting physician, an internist, was engaged, at the neurosurgeon’s request, as a consulting physician to manage the plaintiff’s preexisting hypertension and diabetes while he was in the hospital. The defendant consulting physician (“defendant”) first saw the plaintiff at his bedside, on November 15, 2013 at approximately 8:45 a.m., at which time his examination revealed severe weakness in the plaintiff’s extremities and decreased grip strength, among other findings. The defendant told a nurse that he needed to speak to the neurosurgeon regarding his recommendation for a neck CT scan of the plaintiff.
The defendant and the nurse made several attempts to call the neurosurgeon, who did not respond. The defendant waited approximately fifteen minutes but then left to attend to other patients. Before leaving, he told the nurse to tell the neurosurgeon about the plaintiff’s weakness, numbness, and tingling, and to relate that he was concerned and recommended that a CT scan be performed that morning. He also told the nurse to tell the neurosurgeon to call him if he had any questions or wanted to talk to him.
The neurosurgeon called back at approximately 10:30 a.m. and spoke to the nurse, who advised him regarding the defendant’s recommendation for a CT scan. The neurosurgeon did not approve a CT scan at that time and advised the nurse that he would be coming to the hospital to assess the plaintiff himself. The neurosurgeon again called the hospital concerning the plaintiff at 12:57 p.m. and 9:04 p.m. on November 15, but he did not come in that day to see the plaintiff.
The next morning, the neurosurgeon ordered an MRI after which he performed a second surgery on the plaintiff that afternoon, to remove a hematoma that had compressed the plaintiff’s cervical spine. As a result of that compression, the plaintiff suffered quadriparesis.
The plaintiff sued the neurosurgeon and the defendant consulting physician, among others. After settling with the neurosurgeon, the plaintiff claimed that the defendant consulting physician was negligent in choosing not to confer with the neurosurgeon, failing to timely order diagnostic tests, failing to consult with a neurosurgeon or neurologist, failing to develop a differential diagnosis to determine the cause of the plaintiff’s condition, and failing to facilitate surgery to relieve the pressure on the plaintiff’s spine. However, the focus of the trial was the plaintiff’s claim that the defendant consulting physician was negligent in choosing not to confer with the neurosurgeon.
The Texas medical malpractice jury returned a defense verdict, and the plaintiff subsequently filed a motion for new trial, arguing that the evidence established as a matter of law that the defendant consulting physician breached a nondelegable duty. That motion was denied and the plaintiff appealed.
Texas Appellate Court Opinion
A nondelegable duty is one that is imposed by law on the basis of concerns for public safety. One who bears a nondelegable duty cannot escape it by delegating the duty to another person. If he does assign to another the responsibility for performing such a duty, he remains liable for any negligence in the performance of that duty. Thus, liability for breach of a nondelegable duty is vicarious rather than direct.
The Texas Appellate Court stated that nondelegable duties may be imposed by the legislature or, in limited circumstances, by the courts. As stated above, the Texas Appellate Court held “[the plaintiff] has not identified, nor have we found, any statute or case law imposing on a consulting physician a nondelegable duty to give an attending physician information about a patient’s condition by having a direct physician-to-physician conversation.”
Source Collins v. Cesar Vivanco, M.D., No. 08-17-00213-CV.
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