No. 08-18-00043-CV 

COURT OF APPEALS FOR THE 

EIGHTH DISTRICT OF TEXAS 

EL PASO HEALTHCARE SYSTEM, LTD., dba

Las Palmas Medical Center,

 Appellant

v.

SANTIAGO MONSIVAIS, Deceased By and Through His Next Friends 

Cinthia Monsivais and Samuel Monsivais and Cinthia Monsivais and

Samuel Monsivais, Individually,

 Appellees.

On Appeal from the County Court at Law No. 3

El Paso County, Texas 

Cause No. 2017DCV1526

APPELLEES’ BRIEF

JOE P. LOPEZ, IV

State Bar No. 12566435

jlopez@jrlawfirm.com

RASANSKY LAW FIRM

2525 McKinnon, Suite 550

Dallas, Texas 75201

(214) 651-6100

(214) 651-6150 (Fax)

08-18-00043-CV

ACCEPTED

08-18-00043-CV

EIGHTH COURT OF APPEALS

EL PASO, TEXAS

5/18/2018 12:06 PM

DENISE PACHECO

CLERK

 FILED IN 8th COURT OF APPEALS EL PASO, TEXAS 5/18/2018 12:06:57 PM DENISE PACHECO Clerk
TABLE OF CONTENTS

Table of Authorities ii.

Statement of Facts v.

Summary of the Argument v.

Background 1 

Argument 11

Conclusion 33 

i.
TABLE OF AUTHORITIES

Cases 

Abshire v. HealthSouth Rehab. Hosp. of Beaumont, L.L.C., 

No. 09-16-00107-CV Tex.App. LEXIS 2730, 2017, 

WL 1181380 (Tex.App.—Beaumont March 30, 2017, pet. filed) 18, 24, 25

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 

46 S.W.3d 873 (Tex.2001) 28, 31

Blan v. Ali, 7 S.W.3d 741(Tex.App.-Houston [14th Dist.] 1999, no pet.) 21

Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) 22

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex.2002) 22

Certified EMS, Inc. dba CPNS Staffing v. Potts, 

392 S.W.3d 625 (Tex. 2013) 27, 28, 29, 30, 31, 32, 33

Denton Reg’l Med. Ctr. V. La Croix, 947 S.W.2d 941, 950 

(Tex.App.—Fort Worth 1997, pet. denied) 20, 21, 23

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, (Tex.1985), 

cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) 22, 23

Exxon Pipeline Co. v. Zwahr 88 S.W.3d 623, 629 (Tex. 2002) 22

Hall v. Huff, 957 S.W.2d 90, 101 (Tex. App.-Texarkana 1997, pet. denied) 21

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) 22

Hood v. Phillips, 554 S.W. 2d 160, 165 (Tex.1977) 21 

In re Jorden, 249 S.W.3d 416, 421 (Tex. 2008) 32

ii.
In Re McAllen Medical Center, Inc., 275 S.W.3d 458, 

463 (Tex. 2008) 34 

Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010) 11

Loaisiga, v. Cerda 379 S.W.3d 248 (Tex. 2012) 32

Methodist Hosp. v. German, 369 S.W.3d., 333, 343 

(Tex. App.—Houston [1st Dist.] 2011, pet. denied) 11, 12, 13, 14, 15

Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011) 31

Reed v, Granbury Hosp. Corp., 117 S.W.3d 404, 415 

(Tex.App.—Ft. Worth 2003, no pet.) 18, 19

Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011) 32

TTHR Ltd. v. Moreno, 401 S.W.3d 41 (Tex. 2013) 26, 27, 28, 29

Webb v. Jorns, 488 S.W.2d 407, 411 (Tex.1972) 21

Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009) 11

Other Authorities

Act of June 11, 2003, 78th Leg., R.S., Ch. 204, 

§ 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884 31

Texas Administrative Code 13

22 Tex. Admin. Code § 217.11 13, 14, 16, 17

Medical Practice Act §151.002(a)(13) 23

Tex. Civ. Pr. & Rem. Code §51.014(a)(9) 27

Texas Hospital Law: Liability & Damages §3.1.1 at 3-3 20, 21

iii.
Texas Occ. Code, Ann. §151.002(a)(13) (West Supp. 2016) ........14, 23, 26

Tex. Occ.Code Ann. §§ 301.001–301.3607 

(West 2004 & West Supp. 2010) 13, 14

Tex. Occ.Code Ann. § 301.002(2) (West Supp. 2010) ... 14, 17

Tex. Occ.Code. § 301.004(b) 14

Nursing Practice Act; 22 Tex. Admin. Code §§ 213.1–227.6 (2010) 13

iv.
STATEMENT OF FACTS

Appellees want to correct or clarify the following: Specifically, in Roman 

Numeral II of the Appellant’s Statement of Facts, Appellant makes reference to 

Plaintiffs’ Amended Original Petition. However, Plaintiffs (Appellees herein), 

previously filed a Second Amended Petition which is the live pleading in this case

therein identifying RN Jimenez and Paramedic Bustos by name and adding a cause 

of action for Negligent Supervision and/or Control. 

SUMMARY OF THE ARGUMENT

As per Dr. Dallas Johnson’s supplemental expert report, (CR 107-129), the 

standard of care was for all LPMC ED personnel to thoroughly, accurately, and 

completely examine, assess, observe, and treat Santiago. (CR119). The standard of 

care in emergency departments is to obtain and record a thorough and complete 

medical history. (CR 120). 

As per Dr. Johnson’s report, the standard of care required a thorough, 

accurate, and complete history and examination of all reasonable and pertinent 

information before proceeding with a diagnosis and treatment plan. (CR 127, 128). 

In addition, the standard of care required LPMC to conduct a through ( sic), detailed, 

and accurate analysis of all of the information available to the ED team. (CR 126). 

v.
1 

Background

In its brief, Appellant sets forth some (but not all) of the chronology of events 

which Appellant, hereinafter LPMC, encountered and what its non-physician 

employees and ER doctor did and/or did not do to care for the decedent, Santiago 

Monsivais. (Appellant’s Brief pp. 1-3). 

The Appellee’s expert report however describes the actions and omissions of the 

hospital (LPMC). Specifically, inter alia, Santiago’s mother, Mrs. Monsivais 

initially presented with Santiago at LPMC-ED at 0254 hours with Triage Level 

EST3/Urgent on February 20, 2015. (CR 116). At that time, RN Renato Jimenez

noted the “stated complaint” as constipation and the chief complaint as 

“GI/Abdominal pain” but did not mention that Santiago had had history of trouble 

breathing only one day before when he had been seen by his pediatrician, Dr. Nicolas 

Rich, M.D. (CR 111). He was then seen initially at 3:01 a.m. by Michael Bustos, 

a Paramedic-Emergency Medical Technician. (CR 123), who likewise, did not 

document that Santiago had had history of trouble breathing only one day before 

when he had been seen by his pediatrician, Dr. Nicolas Rich, M.D. (CR 111).

According to the medical record, Mrs. Monsivais told Bustos that Santiago 

“was experiencing constipation with nausea and vomiting for the previous five hours 

and had two episodes of emesis” (i.e., vomiting). (CR 123). Bustos recorded 
2 

Santiago’s “chief complaint” only as “abdominal pain,” and at 3:14 a.m. reported 

that Santiago “was experiencing nausea, constipation that had been constant for [four 

to six] hours and feeding problems.” (CR 123). Bustos also recorded that Santiago 

“had only one wet diaper in the previous [eight] hours.” (CR 123). Following his 

physical examination of Santiago, Bustos reported “[b]owel sounds were not present 

and normal in all four quadrants and at the umbilicus.” (CR 123-24). At 3:28 a.m., 

Bustos and Renato Jimenez, a Registered Nurse, reported that Santiago “was lying 

quietly with no cry.” (CR 124). Dr. Michael Payne was the Emergency Department 

physician who saw Santiago at Las Palmas. In his Emergency Provider Report Dr. 

Payne recorded much of the same information recorded by Bustos, but added that 

Santiago was exhibiting “fussiness” and was “crying more.” (CR 124. Likewise, 

Dr. Payne’s report did not indicate Santiago had been seen the previous day by Dr. 

Rich. Dr Payne diagnosed Santiago as suffering from infantile colic and discharged 

him. (CR 117, 123). Santiago was discharged from Las Palmas at 3:49 a.m. on 

February 20. (CR 116). 

Unfortunately, Santiago’s condition continued to deteriorate, and Mrs. 

Monsivais took him to Providence Memorial Hospital, where he was admitted at 

6:56 a.m. (CR 119). Santiago died later that night at 10:51 p.m. The cause of death 
3 

was “cardiogenic shock from severe sepsis, secondary to Streptococcus agalactiea, 

otherwise known as Group B Strep or GBS.” (CR 119). 

Dr. Dallas Jonson’s Supplemental Expert Report

As per Dr. Dallas Johnson’s supplemental expert report, (CR 107-129), the 

standard of care was for all LPMC ED personnel to thoroughly, accurately, and 

completely examine, assess, observe, and treat Santiago. (CR119). And, the 

standard of care in emergency departments is to obtain and record a thorough and 

complete medical history. (CR 120). 

As per Dr. Johnson’s report, the hospital records reflect that Santiago 

presented with a significant medical history. He was born a very healthy normal 

infant 16 days before presenting to LPMC. Less than 15 hours before presenting to 

LPMC he began to experience changes in his normal behavior. These changes. as 

reported by his mother, included decreased bowel and bladder function, emesis, and 

difficulty breathing. (CR 119). When a patient, particularly an infant barely two 

weeks old, presents with significant signs and symptoms that are not improving, 

signs and symptoms that were concerning enough for his mother to seek medical 

care a second time in 12 hours, an abundance of caution is required and is the 

standard of care. Common sense tells us when there has been no treatment and a 

child's medical condition is not getting better there is something wrong with the child 
4 

and it is incumbent on medical professionals to make every reasonable effort to 

determine the cause of the complaints, why they have persisted, and to begin 

treatment. Doing nothing meaningful caused Santiago's death. 

As per the Appellee’s expert report, the standard of care in emergency 

departments in which Dr. Johnson has worked, is to obtain and record a thorough 

and complete medical history. (CR 120). In the setting of a very young infant it is 

prudent to consider a significant problem exists until reasonable diagnostic efforts 

show that it does not exist. When the child's medical history reveals signs and 

symptoms incompatible with a healthy two week old infant such as absence of 

multiple bowel movements in multiple hours in a 100% breast-fed infant, a single 

wet diaper in more than 8 hours, emesis (a mother who has been nursing her child 

for all of its life knows the difference between spitting up with burping and vomiting) 

are not signs of a well baby. (CR 119, 120).

As per Dr. Johnson, every person from the intake and receiving personnel who 

heard Ms. Monsivais state why she brought her infant to the Emergency Department 

to the educator who instructed Ms. Monsivais on care of Santiago once discharged 

as well as those persons who carried out the patient's discharge from the ED to home 

were employees of LPMC. (CR 121). LPMC acting through it employees had a 

duty to provide adequate, timely and proper care to Santiago. The standard of care 
5 

required (1) a thorough and accurate medical history, (2) a physical examination of 

Santiago with reporting of pertinent findings, (3) laboratory studies to evaluate the 

infant for otherwise unseen signs to explain his symptoms, (4) development of an

assessment and differential diagnosis that used all the information previously

obtained to arrive at a reasonable explanation of and (5) treatment (blood work 

including CBC with differential, CRP, and gram stain-IV, and antibiotics 

(penicillin), and the administration of IV fluids) for the condition that brought 

Santiago to LPMC. (CR 121, 122). (It is noted that generally, only the physician 

could diagnose Santiago’s condition and order tests). 

In any event, and notwithstanding the foregoing, as per Dr. Johnson, the 

medical history taken by LPMC was deficient in that it made no mention of the fact 

Santiago had been seen by a board-certified pediatrician less than 12 hours prior to 

his arrival at LPMC with no improvement in the same symptoms for which he was 

seen by that pediatrician. This was a significant error because it established a firm 

time line for Santiago's symptoms and the fact they were continuing unabated and 

untreated. This was notice to the LPMC ED staff to be on high alert that something 

was continuing to change this infant's behavior and the standard of care was for 

LPMC to make every reasonable effort to determine what that something was and 
6 

to treat it. A cursory and inadequate examination of Santiago was conducted and the 

findings were abnormal. (CR 122). 

In addition, the observation that the child was "lying quietly without crying”

by Bustos and Jimenez is inconsistent with a diagnosis of infantile colic. (CR. 122). 

No fever was reported but, LPMC personnel failed to determine if Santiago's vital 

signs were changing during his 55 minute stay at LPMC because the only VS

recorded were those at the time of presentation to LPMC. (CR 122). The standard 

of care for the history and examination alone required more investigation of this 

infant. (CR 122). 

If the LPMC ED team arrived at the diagnosis of infantile colic independently 

it was incumbent on individuals who examined Santiago including but not limited 

to Paramedic Bustos and Nurse Jimenez to document the other possible diagnoses 

associated with Santiago's signs and symptoms including the possibility of a serious 

condition including the early stages of an infection. However, they did not and 

instead went on to support the incorrect diagnosis of infantile colic. 

The failure to document the fact Santiago was seen by his pediatrician, Dr. 

Nicolas Rich, 12 hours earlier with the same complaints but who had diagnosed him 

with jaundice, with no improvement, was a breach of the standard of care. (CR 122

and RR Vo.2, page 16, line6-10). The failure to adequately observe and record serial 
7 

VS on an infant who was not improving was a breach of the standard of care. (CR 

123). The failure to adequately observe the infant for further evaluation was a breach 

of the standard of care. (CR 123). The failure of LPMC ED personnel, including but 

not limited to, Bustos and Jimenez to consider anything but a benign diagnosis that 

was not supported by the available evidence was a breach of the standard of care. 

These breaches of the standard of care resulted in Paramedic Bustos and Nurse 

Jimenez, with Dr. Payne's approval, to send Santiago home with instructions and 

advice for Ms. Monsivais for a completely benign condition that Santiago did not 

have and completely ignore a very serious condition Santiago did have, namely GBS 

disease. (CR 123)

Appellee’s expert also points out glaring differences between the reports of 

Bustos and Jimenez and those of Dr. Payne which would lead a person to believe 

that they were describing completely different patients. (CR 124). As per 

Appellee’s expert, this is clearly below the standard of care that requires accurate, 

thorough, and complete medical information prior to providing care to a patient. 

(CR 124). For example, Appellee’s expert points out that Santiago’s medical records 

indicate that he was afebrile, as per Bustos and Jimenez, when he arrived at the 

LPMC ED. (CR 125). However, Santiago’s temperature was not recorded by Bustos 

or Jimenez when he was discharged to home from the LPMC ED which was a breach 
8 

of the standard of care. (CR 125). In addition, at the time of discharge, Renato 

Jimenez, RN saw the infant and obtained a heart rate that showed a pulse increase 

from 127 bpm to 144 bpm from vital signs obtained 47 minutes earlier. This increase 

in heart rate was an additional indicator that something of concern was occurring to 

Santiago and he had a much more serious condition than infantile colic. An increase 

in heart rate is associated with increasing body temperature as in a fever associated 

with a bacterial infection such as GBS disease. Ms. Monsivais informed Paramedic 

Bustos that her infant was ill. She stated he was not urinating or emptying his bowels 

as he normally did and he had two episodes of emesis. Santiago was a 100% breastfed infant and such infants have very soft and abundant stool and very rarely become 

constipated. This information was passed on to LPMC personnel as part of 

Santiago’s history. They took this information as well as the information he obtained 

from examining Santiago to form an opinion about Santiago's medical condition 

otherwise known as a clinical impression. This clinical impression and the 

information included in the patient's medical record led Nurse Jimenez to enter a 

diagnosis (primary impression) of infantile colic, a benign and self-limiting newborn 

condition. (CR 125, 126).

Santiago's medical record does not support a diagnosis of a benign and selflimiting newborn condition. However, his medical record contains several elements, 
9 

including significantly decreased bowel and bladder activity, breathing difficulties, 

absent bowel sounds, lethargy, and emesis that should cause prudent physicians and 

Emergency Department personnel to seriously consider this infant has a condition 

more serious than colic such as a serious infection like GBS. (CR 126). 

Again, the standard of care required LPMC to conduct a thorough, detailed, 

and accurate analysis of all of the information reasonably available to the ED team. 

(CR 126).

The diagnosis of infantile colic also led to teaching by Nurse Jimenez to Ms.

Monsivais about managing infantile colic when her child actually had a much more 

serious condition, GBS. (CR 126).

Actions by the LPMC ED personnel led to decisions about disposition of the 

child and the educational information to be provided to Ms. Monsivais regarding the 

care of Santiago following his discharge to home. The educational material

(including but not limited to, the "Discharge Instructions” which was provided to 

Ms. Monsivais, was specifically for infantile colic and made no mention of

warnings, signs, symptoms and necessary actions for a more serious condition such 

as GBS. In fact, LPMC’s standard Discharge Instructions stated that the fussiness 

and crying were a ''completely normal pattern." LPMC’s Discharge Instructions 

went on to state that a medical exam would help determine the causes of most 
10

"colicky babies,'' and that in most cases, there is nothing physically or emotionally 

wrong with the baby (or the parents). LPMC’s Discharge Instructions went on to 

provide instruction to the parent regarding feeding methods and changes in diet only. 

The Discharge Instructions also instructed the parent to return or to contact a doctor 

if the child experienced certain specified symptoms such as: poor feeding, repeated 

vomiting, unexpected changes in crying pattern or behavior, suspected abdominal 

pain, etc. The LPMC record clearly shows that Santiago was exhibiting all of the

foregoing symptoms and complaints while at LPMC; yet, LPMC did nothing to 

address the complaints and symptoms. LPMC grossly mishandled and mismanaged 

Santiago's care and breached the standard of care, which proximately caused his 

death. LPMC ED personnel who examined and treated Santiago did not utilize the

information reasonably available to them including, but not limited to, the patient's 

history of present illness and chief complaint. 

As per Dr. Johnson’s report, the standard of care required a thorough, 

accurate, and complete history and examination of all reasonable and pertinent

information before proceeding with a diagnosis and treatment plan. (CR 127, 128).
11

Argument

1. The Appellee’s Expert Report Does Not Impose a Higher Standard of 

Care Than That Allowed by Law.

Challenges to expert opinions ordinarily arise in the context of rulings on their 

admissibility, which are reviewed for an abuse of discretion. See Whirlpool Corp. 

v. Camacho, 298 S.W.3d 631, 638 (Tex.2009). While it may be true that is not 

enough for an expert simply to opine that the defendant’s negligence caused the 

plaintiff’s injury, proximate cause need not be proven by expert testimony if it 

involved a case of “common sense.” Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 

2010). In any event, Appellant herein does not raise the issue of proximate cause 

in its brief and therefore, it need not be addressed any further other than to point 

out that the case at bar is a case involving “common sense.” Doing nothing to 

address the patient’s dire condition is not the standard of care required of 

Appellant LPMC and its employee staff but, that is exactly what LPMC did, 

nothing. (RR Vol. 2, page 23, lines 4-7). 

The Appellant argues that the bounds of the standard of care are set by 

legislation and regulation promulgated by licensing board and that therefore, an 

expert cannot impose a higher standard of care upon a health care provider than 

what the law allows. (Appellant’s Brief @ 9 citing Methodist Hosp. v. German, 
12

369 S.W.3d., 333, 343 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). That 

case is inapposite to the case at bar.

German was a medical malpractice case against a hospital involving the care 

provided by its nurses. Appellee John German was admitted to Methodist Hospital 

for surgery to repair a congenital heart defect. A tragic surgical error committed 

during his first heart surgery required additional surgeries and interventions. German 

survived, but only after suffering the amputation of one leg, one foot, and most of 

his fingers. German filed suit to recover damages for injuries arising from the 

original surgery and his subsequent course of treatment. After settling with his 

doctors, he proceeded to trial against the sole remaining defendant, the Methodist 

Hospital. German sought to hold Methodist responsible for the acts of its nurses, 

alleging that the nurses failed to notice that he was having a dangerous reaction to 

medication, and that their failure to take appropriate action led to the eventual 

amputations. German also alleged that Methodist did not properly train its nurses to 

recognize and appropriately respond to his symptoms. German at 333. 

 The jury awarded damages to German based on findings that Methodist was 

negligent and was 50% responsible for the injuries. The jury also found that the 

hospital had acted with conscious indifference in providing medical care and 

awarded exemplary damages. The trial court entered judgment on the verdict in 
13

German's favor. Among other things, the hospital contends on appeal that the 

evidence was legally insufficient to support the verdict, primarily because critical 

testimony by German's expert witness was unreliable and conclusory. German at 

333. 

As to the theory based on the nurses' alleged failures, Methodist argued that a 

critical component of German's proposed standard of care conflicted with Texas law 

by effectively requiring the nurses to diagnose German's symptoms as HIT, and 

therefore the proposed standard was not supported by any legally sufficient 

evidence. (Emphasis added). German at 338. 

The German court pointed out that German’s expert witness “could not testify 

that the nurses should have diagnosed HIT.” German at 339. 

As per the opinion in German, both Methodist and German relied on the 

Nursing Practice Act and its implementing regulations in the Texas Administrative 

Code as defining the standard of care for nurses applicable to that case. See Tex. 

Occ.Code Ann. §§ 301.001–301.3607 (West 2004 & West Supp. 2010) (Nursing 

Practice Act); 22 Tex. Admin. Code §§ 213.1–227.6 (2010). Rule 217.11 of the 

Texas Administrative Code, entitled “Standards of Nursing Practice,” defines the 

“minimum acceptable level of nursing practice” for a given setting. See 22 Tex. 

Admin. Code § 217.11. Among the standards applicable to all nurses are the 
14

requirements that a nurse know the rationale for, and effects of, medications and 

treatments and correctly administer them, as well as, accurately and completely 

reporting the patient's signs, symptoms, and responses. Id. § 217.11(1)(C), (D). 

(Emphasis added). German at 340.

In defining “professional nursing,” the Nursing Practice Act specifically 

excludes “acts of medical diagnosis.” Tex. Occ.Code Ann. § 301.002(2) (West Supp. 

2010). Furthermore, the Act specifically states that it “does not authorize the practice 

of medicine as defined by Chapter 151” of the Occupations Code. See id. § 

301.004(b). The Medical Practice Act defines “practicing medicine” to include “the 

diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a 

physical deformity or injury by any system or method, or the attempt to effect cures 

of those conditions.” Id. §151.002(a)(13). Medical diagnosis is commonly 

understood to be the determination of the cause and nature of a patient's condition. 

German at 340. Both Methodist and German agreed that nurses cannot legally make 

medical diagnoses. German at 340.

The court in German held that “German offered no evidence of any standard 

of care effectively requiring the nurses to diagnose HIT. (Emphasis added). German 

at 343. The German court went on to state that “This holding does not mean that a 
15

nurse has no duty to recognize and appropriately report or otherwise act on the signs 

and symptoms of a dangerous allergic reaction.” German at 343. (Emphasis added).

It is interesting to point out that, as per the Texas Department of State Health 

Services, the “Nursing Standards of Care” as defined therein, “pertain to 

professional nursing activities that are demonstrated by the nurse through the nursing 

process. These involve assessment, diagnosis, outcome identification, planning 

implementation, and evaluation. The nursing process is the foundation of clinical 

decision making and encompasses all significant action taken by nurses in providing 

care to all consumers.” (September 1, 2004). (Emphasis added). It uses the word 

“diagnosis” as part of “professional nursing activities.”

In addition, Section 217.11 of the Texas Administrative Code; Standards of 

Nursing Practice, provides in relevant part that:

The Texas Board of Nursing is responsible for regulating the practice of 

nursing within the State of Texas for Vocational Nurses, Registered Nurses, 

and Registered Nurses with advanced practice authorization. The standards of 

practice establish a minimum acceptable level of nursing practice in any 

setting for each level of nursing licensure or advanced practice authorization. 

Failure to meet these standards may result in action against the nurse's license 

even if no actual patient injury resulted.

The relevant portions of that section provide as follows: 

(1)Standards Applicable to All Nurses. All vocational nurses, registered 

nurses and registered nurses with advanced practice authorization shall:

... 
16

(F) Promote and participate in education and counseling to a client(s) and, 

where applicable, the family/significant other(s) based on health needs;

(H) Make a reasonable effort to obtain orientation/training for competency 

when encountering new equipment and technology or unfamiliar care 

situations; 

(M) Institute appropriate nursing interventions that might be required to 

stabilize a client's condition and/or prevent complications; 

(N) Clarify any order or treatment regimen that the nurse has reason to 

believe is inaccurate, non-efficacious or contraindicated by consulting 

with the appropriate licensed practitioner and notifying the ordering 

practitioner when the nurse makes the decision not to administer the 

medication or treatment;

(P) Collaborate with the client, members of the health care team and, when 

appropriate, the client's significant other(s) in the interest of the client's 

health care. 

In addition, the Texas Occupations Code, Section 301.002 states in relevant part that:

(2) “Professional nursing” means the performance of an act that requires 

substantial specialized judgment and skill, the proper performance of which is 

based on knowledge and application of the principles of biological, physical, and 

social science as acquired by a completed course in an approved school of 

professional nursing. The term does not include acts of medical diagnosis or the 

prescription of therapeutic or corrective measures. Professional nursing involves:

(A) the observation, assessment, intervention, evaluation, 

rehabilitation, care and counsel, or health teachings of a person who is 

ill, injured, infirm, or experiencing a change in normal health 

processes;

(B) the maintenance of health or prevention of illness.
17

In the case at bar, the acts of Nurse Jimenez should have included the 

observation, assessment, intervention, evaluation, rehabilitation, care and counsel, 

of Santiago. In addition, “health teachings” as contained in (2)(A) above, included 

the teaching in the case at bar to Ms. Monsivais by Nurse Jimenez of LPMC in the 

Discharge Summary about “infantile colic” (although Santiago was not afflicted 

with that condition). 

Appellant wants this Court to conclude that Appellee was requiring LPMC to 

make diagnoses. That is simply not true. Having said that, it is incumbent on the 

non-physician personnel to thoroughly, accurately, and completely examine, assess, 

observe, and treat Santiago (CR119) and to obtain and record a thorough and 

complete medical history. That being said, the standard of care which is set forth 

repeatedly by the Appellee’s expert was for LPMC and its ED personnel to 

thoroughly, accurately, and completely examine, assess, observe, and treat Santiago 

(CR119) and to obtain and record a thorough and complete medical history (CR 120, 

121). The standard of care for the history and examination alone required more 

investigation of this infant. (CR 122). The standard of care also required accurate, 

thorough, and complete medical information prior to providing care to a patient. 

(CR 124). Therefore, in view of the foregoing argument and authorities, Dr. 

Johnson’s report does not impose a higher standard of care than that allowed by law.
18

II.

Dr. Johnson’s Supplemental Report Which Sets Forth a Standard of Care for 

Las Palmas’ Non-Physician Staff Does Not Amount to the Practice of 

Medicine

Appellant argues that a hospital cannot practice medicine and may not be held 

liable for functions that require the practice of medicine. (Citing Reed v. Granbury 

Hosp. Corp., 117 S.W.3d 404, 415 (Tex.App.—Ft. Worth 2003, no pet.) and Abshire 

v. HealthSouth Rehab. Hosp. of Beaumont, L.L.C., No. 09-16-00107-CV Tex.App. 

LEXIS 2730, 2017, WL 1181380, at *43 (Tex.App.—Beaumont March 30, 2017, 

pet. filed). Appellee incorporates the arguments and authorities set forth in Roman 

Numeral I above, as if set forth herein at length. 

In Roman Numeral II of its brief, Appellant argues that Dr. Johnson’s 

Supplemental Report which sets forth a standard of care for Las Palmas’ nonphysician staff amounts to the practice of medicine. Furthermore, Appellant claims 

that Jimenez and Bustos and other “unidentified personnel” failed to, diagnose, order 

tests, and treat Santiago. What Dr. Johnson actually said in part, inter alia, was that 

standard of care was for LPMC ED personnel to thoroughly, accurately, and 

completely examine, assess, observe, and treat Santiago. (CR119). Two of the 

“personnel” that Dr. Johnson was obviously referring to were EMT Bustos and RN 

Jimenez. The only other person whom Dr. Johnson referred to in his report was the 
19

“intake person,” who was not named by LPMC, and, whom Dr. Johnson opined, 

should have taken an accurate, thorough, and complete medical history. In addition, 

defense counsel for LPMC represented to the trial court at the February 23, 2018, 

hearing that Dr. Johnson did not identify the LPMC to whom he is referring in his 

report. (RR Vol 3, page 16, lines 8-11). On the contrary, the Plaintiffs’ expert report 

is replete with the identification of the LPMC personnel. (CR 120, 122, 123, 124, 

125, 126). This matter was raised by Plaintiffs’ counsel at RR Vol. 3, page 30, line 

2 – page 32, line 4. 

Appellant cites this Court to the case of Reed v. Granbury Hosp. Corp. 117 

S.W.3d 404 (Tex.App.—Ft. Worth 2003, no pet.) for the proposition that a hospital 

cannot practice medicine and therefore cannot be held directly liable for any acts or 

omissions that constitute medical functions. 

That case involved an individual (Mr. Reed) who had suffered stroke-like 

symptoms and was taken to the hospital. A registered nurse had recently heard on a 

television documentary program that the drug t-PA could be used as a clot-busting 

treatment for stroke if administered within three hours after a stroke. At the Hospital, 

Mrs. Reed told Dr. Don Davis, the emergency-room physician, that she had heard 

about t-PA and, "if possible, [she] wanted Jess to get this." On the date of Mr. Reed's 

stroke, the Hospital had t-PA available and also had a written policy allowing its 
20

administration to cardiac patients. The Hospital did not, however, have a protocol 

for administering t-PA to stroke victims, and it had no written standard of care for 

stroke patients. Dr. Davis testified that, although he did not rely on the Hospital to 

advise him regarding what medical treatments were appropriate for a patient, 

including Mr. Reed, he did not consider administering t-PA to Mr. Reed without a 

Hospital protocol. The Reeds sued the Hospital for negligence in the medical 

treatment Mr. Reed received. The Reed case involved policies and procedures of a 

hospital. 

Contrary to the appellant’s position, in the instant case, a hospital may in fact, 

be liable for injuries arising from the negligent performance of a duty that the 

hospital owes directly to a patient. Denton Reg’l Med. Ctr. v. La Croix, 947 S.W.2d 

941, 950 (Tex.App.—Fort Worth 1997, pet. denied). (Emphasis added). One such 

duty is the duty to use reasonable care in formulating the policies and procedures 

that govern the hospital's medical staff and non-physician personnel. Id. The test 

used to determine the standard of care a hospital is required to use in formulating its 

policies and procedures is what a hospital of ordinary prudence would have done 

under the same or similar circumstances. LaCroix, 947 S.W.2d at 950; Texas 

Hospital Law: Liability & Damages §3.1.1 at 3-3. Circumstances to be considered 

include, but are not limited to, the expertise of, and means available to, the hospital 
21

and the state of medical knowledge. Hood v. Phillips, 554 S.W.2d 160, 165 

(Tex.1977). Expert testimony is generally required to establish the governing 

standard of care and to determine whether the standard has been breached. Id. at 165-

66; LaCroix, 947 S.W.2d at 950. While the standard of administrative care at a 

hospital may be established by lay testimony, medical expert testimony is required 

where the underlying issue involves the performance of medical procedures. 

LaCroix, 947 S.W.2d at 950-51; Texas Hospital Law: Liability & Damages § 3.1.2 

at 3-5.

There are certain standards universally regarded as ordinary medical standards 

beneath which no common or community standards may fall. Webb v. Jorns, 488 

S.W.2d 407, 411 (Tex.1972). This is because universality of education, training, 

testing, and travel in the realm of medical treatment have produced a correspondent 

right to expect the same basic quality of care from region to region. Hall v. Huff, 957 

S.W.2d 90, 101 (Tex. App.-Texarkana 1997, pet. denied). These universal standards 

apply to multiple schools of practice and to any medical doctor. Blan v. Ali, 7 S.W.3d 

741, 746 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

In the case at bar, LPMC can be held directly liable for the acts and omissions 

of its non-physician personnel, such as nurse Jimenez, EMT Bustos, and/or the 

intake person. Among other things, as the medical records confirm, those 
22

individuals, which the hospital employed, did not record/take an accurate or 

complete medical history, did not perform more than one set of vitals, did not 

properly adequately observe Santiago, did not adequately examine Santiago, and did 

not properly evaluate Santiago, and did not document that Santiago had had history 

of trouble breathing only one day before when he had been seen by his pediatrician, 

or that Santiago had been seen by his pediatrician less than 12 hours before his 

mother brought Santiago to LPMC. (CR 119-129). Those failures, among others 

as set forth in Dr. Johnson’s supplemental report, proximately caused the death of 

Santiago. (CR 128).

The trial court has broad discretion to determine admissibility, and an 

appellate court will not reverse the trial court's ruling absent a clear abuse of that 

discretion. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629; Helena Chem. Co. v. 

Wilkins, 47 S.W.3d 486, 499; Broders v. Heise, 924 S.W.2d 148, 151. A trial court 

abuses its discretion only if it acts arbitrarily and capriciously, without reference to 

any guiding rules or principles. See Carpenter v. Cimarron Hydrocarbons Corp., 98 

S.W.3d 682, 687 (Tex.2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 

238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 

721 (1986). Merely because a trial court may decide a matter within its discretion in 
23

a different manner than an appellate court would in a similar circumstance does not 

demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242.

Dr. Johnson set forth his experience and familiarity and special knowledge 

with regard to about what protocols, policies, or procedures a hospital of ordinary 

prudence, would have had in place for it and its staff and what it and its staff should

have done. (CR 107-109). Again, if the subject matter is common to, and equally 

recognized in, all fields of practice, any physician familiar with the subject may 

testify regarding the standard of care. 

Interestingly, in its brief, Appellant does not set forth what it thinks the 

standard of care is. It only seems to maintain that whatever the standard of care is, 

the hospital cannot be held directly liable for a breach of it. While a hospital’s 

internal policies and procedures do not, alone, determine the standard of care, they 

may be considered in determining that standard. La Croix, 947 S.W.2d at 951. 

Although it may be the case that medical decisions are to be made by attending 

physicians and that a hospital cannot practice medicine, (Tex. Occ. Code, Section 

151.002(a)(13)), the actions of RN Jimenez and of EMT Bustos, as well as its intake 

staff, did not entail making medical decisions or the diagnosis, treatment, or offer to 

treat a physical disease, disorder, or injury. (RR Vol. 2, page 15, lines 5-15). On 

the contrary, the facts confirm that Nurse Jimenez, EMT Bustos, and the intake staff, 
24

did not make any medical decisions. But, what little they did do, they did so 

inadequately and incompletely. (CR 119-129). 

Appellant also cites the court to the case of Healthsouth Rehab. Hosp. of 

Beaumont and Christus Healthsouth Southeast Texas dba Christus Hospital-St. 

Elizabeth v. Abshire, 2017 WL 1181380 (Tex.App.—Beaumont, March 30, 2017, 

pet. filed). That was a case involving an accelerated appeal from the trial court's 

order overruling the defendants' objections to plaintiff's expert reports and denying 

a motion to dismiss plaintiff's health care liability claim. Abshire at *1. Abshire 

alleged, as to Christus Hospital, that the health care professionals there who attended 

to the patient failed to recognize the signs and symptoms of a spinal compression 

fracture resulting in a delay in treatment which caused Ms. Abshire's paraplegia. 

They also missed the history of osteogenesis imperfecta that predisposes one to 

fractures. 

The Plaintiffs in Abshire produced an expert report setting forth the standard 

of care which required Christus to: (1) evaluate the cause of Abshire's pain, (2) 

examine her back for musculoskeletal problems, (3) consider her relevant prior 

medical history, (4) recognize signs and symptoms indicating a compromise of the 

musculoskeletal system in Abshire's neck, shoulders, and back, and (5) institute 

early stabilization of the spine prior to the establishment of paraplegia. Abshire @*3. 
25

A hearing was thereafter held on the objections to the expert’s report. The court 

found that although Dr. Rushing's report was a good faith effort to comply with 

Chapter 74, it did not comply with the requirements of the statute and granted an 

extension of time to supplement the expert report. Abshire @*5. 

The purpose of Appellant citing the Abshire case seems to be to make the 

point that allegedly “a hospital may not be held liable for functions that require the 

practice of medicine.” (Appellant’s brief at page 9). That alleged verbiage however, 

was merely an argument made by Christus Hospital in the Abshire case and in any 

event, is NOT what the Christus argument was. Christus’s argument was that “a 

hospital cannot practice medicine and therefore cannot be held directly liable for any 

acts or omissions that constitute medical functions.” Abshire at *9. 

The trial court in Abshire concluded that “Dr. Rushing's qualifications were 

adequate because Rushing had supervised nurses for a fifteen-year period, had 

participated in setting medical policy at hospitals, and Rushing oversees 

rehabilitation efforts of his patients. The trial court wrote that Dr. Rushing had stated 

that the standard of care for the nurses at Christus was “to accurately assess, 

document and communicate matters to the physician[ ]” and Dr. Rushing cited 

“numerous examples” of a failure of the nursing staff to do so.” Abshire @ 9. 
26

Texas Occ. Code, Ann. §151.002(a)(13) (West Supp. 2016) defines 

“practicing medicine” as the diagnosis, treatment, or offer to treat a physical disease, 

disorder, or injury by a licensed physician or surgeon. 

In the instant case, neither Nurse Jimenez or EMT Bustos (or the hospital’s 

intake staff for that matter) diagnosed, treated, or offered to treat Santiago. This is 

contrary to what defense counsel Norton argued to the trial court. As Dr. Johnson 

set forth in his reports, and as stated hereinabove, the standard of care was to properly 

and completely assess, evaluate, observe, and examine Santiago, and to take more 

than one set of vital signs, and to take an accurate or complete medical history, and 

to document that Santiago had had history of trouble breathing only one day before 

when he had been seen by his pediatrician. (CR 119, 120). 

Appellee’s expert repeatedly sets forth the standard of care for the hospital 

and its non-physician staff. Appellant, on the contrary did not, not even once, set 

forth what it believes to be the SOC which is applicable to it. Of course, if you 

believe LPMC, maybe the standard of care was for it was to do exactly what it and 

its employees did for the decedent, to wit, nothing, other than to discharge him with 

a diagnosis of infantile colic. 

A case which Appellant believes to be relevant is the case of TTHR Ltd. v. 

Moreno, 401 S.W.3d 41 (Tex. 2013), which involved a suit against a hospital and 
27

two doctors. Plaintiff alleged that the hospital was liable for the injuries to F.C. 

because of its own direct negligence, as well as, its vicarious liability for the 

negligence of its nurses and the two doctors. Moreno at 43. The hospital objected 

to the adequacy of the experts’ two reports and the trial court sustained same. The 

Plaintiff was given a thirty-day extension to cure the reports. The Plaintiff then filed 

a report of a pediatric neurologist, to which the hospital also objected. The trial court 

determined that when the three reports were read in concert, Moreno had met the 

TMLA's requirements. It denied the hospital's motion to dismiss, and an 

interlocutory appeal followed. See Tex. Civ. Pr. & Rem. Code §51.014(a)(9). The 

court of appeals affirmed as to the adequacy of the reports regarding Moreno's claim 

that Presbyterian was vicariously liable for the doctors' negligence but, in addressing 

the direct liability claims, the court concluded that one of the expert’s report did not 

adequately address the applicable standards of care or how Presbyterian breached 

those standards, and neither of the reports of the other two experts addressed any 

standard or breach by the hospital. Moreno at 43, 44. The court remanded the case

to the trial court and instructed it to consider granting Moreno a thirty-day extension 

to cure the deficiencies found on appeal. 

After the Supreme Court heard oral argument in that case, it then held in 

Certified EMS, Inc. dba CPNS Staffing v. Potts, 392 S.W.3d 625 (Tex. 2013) that 
28

the TMLA does not require an expert report for each liability theory pleaded against 

a defendant. Certified EMS, Inc., 392 S.W.3d at 632. The Court went on to state that 

“our decision in that case controls the outcome here because we conclude that 

Moreno's expert reports addressing the hospital's alleged liability for the actions of 

Drs. Wilson and Gore-Green are adequate.” Moreno at 44. 

The Supreme Court agreed with the court of appeals which held that the trial 

court did not abuse its discretion by finding Moreno's reports adequate as to the claim 

that the hospital was vicariously liable for the negligence of the doctors. Moreno at 

44. The court of appeals’ review of the trial court's ruling was under the abuse of 

discretion standard. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 

873, 877 (Tex.2001). 

The Supreme Court went on to state that “as we articulated in Certified EMS,

the TMLA requires a claimant to timely file an adequate expert report as to each 

defendant in a health care liability claim, but it does not require an expert report as 

to each liability theory alleged against that defendant. Certified EMS, Inc., 392 

S.W.3d at 632.” (See also RR Vol 2, page 31, lines 20 - page 32, line 1). Potts went 

on to state that “[H]ere, because the trial court did not abuse its discretion in finding 

Moreno's reports adequate as to her theory that Presbyterian is vicariously liable for 

the doctors' actions, her suit against Presbyterian — including her claims that the 
29

hospital has direct liability and vicarious liability for actions of the nurses — may 

proceed. See id. at 632.” Moreno at 45. 

Potts was a case in which a patient alleged that a hospital nurse, who was 

temporarily placed with the hospital by a staffing service, assaulted her. The patient 

sued under the Texas Medical Liability Act, asserting that the staffing service was 

directly and vicariously liable for the nurse's conduct. The staffing service sought 

dismissal because the patient's expert reports did not specify how the service was 

directly negligent. Potts at 626. The trial court denied the motion to dismiss, and the 

court of appeals affirmed. It held that because the reports support a theory of 

vicarious liability against the staffing service, the lack of a description supporting 

direct liability is not fatal to the claimant's maintaining her cause of action. The 

Supreme Court agreed with the court of appeals, but for different reasons. Potts at 

626. 

Potts claimed that Certified EMS was directly liable for Nurse Hardin’s 

conduct because it failed to properly train and oversee its staff, enforce applicable 

standards of care, and employ protocols to ensure quality patient care and adequate 

staff supervision.

Similarly, in the case at bar, in Plaintiffs’ Second Amended Original Petition, 

which Plaintiffs ask the Court to take judicial notice of, Plaintiffs pled “negligent 
30

supervision and control.” (Suppl. CR Vol. 1, p. 14). Plaintiffs alleged therein that 

“Defendant Las Palmas Medical Center owed Plaintiffs a legal duty to hire and 

supervise and/or control competent workers to do perform the functions in its 

emergency department. Defendant Las Palmas Medical Center breached those 

duties by hiring and/or by failing to supervise and/or adequately supervise its 

workers, which proximately caused the damages and injuries to the plaintiffs for 

which plaintiffs seek compensation.” (Suppl. CR Vol. 1, p. 14). 

In the Potts case, Certified EMS challenged the reports and the court gave 

Potts thirty days to cure the deficiencies. Certified EMS objected to the newly 

submitted reports and moved to dismiss on numerous grounds, among them, that the 

reports omitted any explicit reference to Certified EMS's direct liability for Hardin's 

conduct. The trial court denied the motion, and Certified EMS appealed. The court 

of appeals affirmed, holding that "if the claimant timely serves an expert report that 

adequately addresses at least one liability theory against a defendant health care 

provider, the suit can proceed, including discovery, without the need for every 

liability theory to be addressed in the report." (Emphasis added). The Supreme Court 

granted Certified EMS's petition for review, which raised a single issue: Must a 

claimant in a health care liability suit provide an expert report for each pleaded 

liability theory? 55 Tex. Sup. Ct. J. 461 (Mar. 30, 2012). 

---
31

A report need not cover every alleged liability theory to make the defendant 

aware of the conduct that is at issue. Potts (citing Am. Transitional Care Ctrs. of 

Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001)), which recognized that an 

expert report does not require litigation-ready evidence. Rather, "to avoid dismissal 

... [t]he report can be informal in that the information in the report does not have to 

meet the same requirements as the evidence offered in a summary-judgment 

proceeding or at trial." Id. and RR Vol. 2, page 17, lines 18 – page 19, line 14. For 

the particular liability theory addressed, the report must sufficiently describe the 

defendant's alleged conduct. Such a report both informs a defendant of the behavior 

in question and allows the trial court to determine if the allegations have merit. If the 

trial court decides that a liability theory is supported, then the claim is not frivolous, 

and the suit may proceed. Potts at 631.

The Potts court stated that “[t]his approach is consistent with the Legislature's 

intent. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). ("Our primary 

objective in construing statutes is to give effect to the Legislature's intent."). In 

amending the Act, the Legislature sought to reduce "the excessive frequency and 

severity of ... claims," but to "do so in a manner that will not unduly restrict a 

claimant's rights any more than necessary to deal with the crisis." Act of June 11, 

2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884. In 
32

accordance with this goal, we have opined that one purpose of the report requirement 

is "to expeditiously weed out claims that have no merit." Loaisiga, v. Cerda 379 

S.W.3d 248, 263. (RR Vol. 2, page 19, lines 22-24). (Emphasis added). We have 

also stated that the purpose of evaluating expert reports is "to deter frivolous claims, 

not to dispose of claims regardless of their merits." Scoresby v. Santillan, 346 

S.W.3d 546, 554 (Tex. 2011); see also Loaisiga, at 258 (recognizing that the expert 

report "requirements are meant to identify frivolous claims and reduce the expense 

and time to dispose of any that are filed"); In re Jorden, 249 S.W.3d 416, 421 (Tex. 

2008).” Potts at 631.

 To require an expert report for each and every theory would entangle the courts 

and the parties in collateral fights about intricacies of pleadings rather than the merits 

of a cause of action, creating additional expense and delay as trial and appellate 

courts parse theories that could be disposed of more simply through other means as 

the case progresses. Cf. Scoresby, 346 S.W.3d at 549 (applying a "lenient standard" 

to a plaintiff's right to cure a deficient report, noting that approach "avoids the 

expense and delay of multiple interlocutory appeals and assures a claimant a fair 

opportunity to demonstrate that his claim is not frivolous"). Potts at 631.

The Supreme Court also pointed out that while a full development of all 

liability theories may be required for pretrial motions or to convince a judge or jury 

--
33

during trial, there is no such requirement at the expert report stage. See Palacios, 46 

S.W.3d at 879. Potts at 632.

The Act requires the expert report to summarize the expert's opinions "as of 

the date of the report," recognizing that those opinions are subject to further 

refinement. CPRC§74.351(r)(6). Discovery can reveal facts supporting additional 

liability theories, and the Act does not prohibit a claimant from amending her 

petition accordingly. Under Potts’ reasoning, a claimant would have to serve an 

expert report each time a new theory is discovered. Not only would that be 

impractical, it would prohibit altogether those theories asserted more than 120 days 

after the original petition was filed — effectively eliminating a claimant's ability to 

add newly discovered theories. Potts at 632. In sum, an expert report that adequately 

addresses at least one pleaded liability theory satisfies the statutory requirements, 

and the trial court must not dismiss in such a case. To the extent other cases hold 

differently, we disapprove of them. Potts at 632. 

III. 

CONCLUSION

The Nightingale Pledge’s first principle, to do no harm, is directly related to 

the nurse’s duty to protect the patient’s safety. Born out of the hipocratic oath, this 

principle dictates that “we do not cause injury to our patients.” 
34

Likewise, the EMT Code of Ethics provides in relevant part: A fundamental 

responsibility of the Emergency Medical Technician is to conserve life, to alleviate 

suffering, to promote health, to do no harm, and to encourage the quality and equal 

availability of emergency medical care. 

Lastly, the standard of care for a hospital is “what an ordinary prudent hospital 

would do under the same or similar circumstances.” In Re McAllen Medical Center, 

Inc., 275 S.W.3d 458, 463 (Tex. 2008). 

It’s a sad day when a new first-time mother takes her 15-day old infant who 

was born healthy, to Las Palmas Medical Center (LPMC) complaining that her son 

has been suffering from trouble breathing (which was not documented by either the 

LPMC intake person, or by RN Jimenez, or by EMT-P Bustos, or by any other 

LPMC employee), was experiencing constipation with nausea and vomiting for the 

previous five hours, has had two episodes of emesis, has been experiencing feeding 

problems, has had only one wet diaper in the previous eight hours, and who has been 

seen by his pediatrician only 12 hours before for substantially the same symptoms 

(which was also not documented by either the LPMC intake person, or by RN 

Jimenez, or EMT-P Bustos), is nevertheless discharged from Las Palmas with a 

diagnosis of infantile colic, and is then taken by his mother to Providence Memorial 

Hospital, where he is admitted but who dies that night from cardiogenic shock from 
35

severe sepsis, secondary to Streptococcus agalactiea, otherwise known as Group B 

Strep or GBS. 

Although it this writer’s opinion that “common sense” plays a major role in 

this case, Dr. Johnson’s reports adequately and repeatedly set forth the appropriate 

standard of care applicable to LPMC. 

WHEREFORE, PREMISES CONSIDERED, the Court should affirm the trial 

court’s order overruling Las Palmas’ objections to Dr. Johnson’s supplemental 

report and for such other and further relief to which Plaintiffs may show themselves 

to be justly entitled.

Respectfully submitted,

RASANSKY LAW FIRM

 /s/ Joe P. López, IV

JEFFREY H. RASANSKY

 State Bar No. 16551150

 jrasansky@jrlawfirm.com

 JOE P. LÓPEZ, IV

 State Bar No. 12566435

 jlopez@jrlawfirm.com

 

2525 McKinnon, Suite 550

 Dallas, TX 75201

 Telephone: (214) 651-6100

 Facsimile: (214) 651-6150

 ATTORNEYS FOR APPELLEES
36

CERTIFICATE OF COMPLIANCE

The foregoing Appellee’s Brief complies with the type volume limitations of 

Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure because it contains 8,120 

words, excluding those parts of the brief exempted by Rule 9.4(i)(1).

 /s/ Joe P. Lopez, IV 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was 

served upon the following persons pursuant to the Texas Rules of Appellate 

Procedure 9.5(b)(1) on this 18th day of May, 2018: 

VIA E-SERVICE

Joseph L. Hood, Jr.

Windle Hood Alley Norton 

Brittain & Jay, LLP

201 E. Main, Suite 1350

El Paso, Texas 79901

hood@windlehood.com

 /s/ Joe P. Lopez, IV