Professional Negligence Law Reporter

A Texas appellate court held that a hospital internist was not liable for medical negligence arising out of his failure to timely discuss a postsurgical patient’s condition with his treating neurosurgeon.

Charles Collins underwent neck surgery performed by neurosurgeon Shanker Sundrani. That afternoon, Collins developed adverse symptoms, including numbness and weakness in his extremities. Hospital staff called Sundrani, and nurses noted the following morning that Collins had movement in his extremities but could not grip. Cesar Vivanco, the hospital internist Sundrani had consulted about Collins’s preexisting hypertension and diabetes, came to Collins’s beside the day after the surgery. He later told nurse Diana Montanez that he needed to speak to Sundrani and wanted to know whether Sundrani would proceed with a CT scan of Collins’s neck. The two made several calls to Sundrani, who did not immediately respond. Vivanco then left to attend to other patients but told Montanez to tell Sundrani about Collins’s weakness, numbness, and tingling. Vivanco’s notes were put into the hospital’s computerized records.

Sundrani subsequently called and spoke to Montanez, who notified the doctor of Collin’s symptoms and Vivanco’s recommendation of a CT scan. Sundrani allegedly said that he would be coming to the hospital to assess Collins himself. Sundrani did not come to the hospital to see Collins that day. The next day, Collins underwent an MRI, which led to a second surgery. This revealed the presence of a hematoma compressing Collins’s cervical spine. Despite the surgery, Collins now suffers from quadriparesis.

Collins and his wife sued Vivanco, among others, alleging he breached the standard of care by not conferring directly with Sundrani. The jury found no liability, and the trial court entered a take-nothing judgment on the jury’s verdict.

Affirming, the appellate court rejected the plaintiff’s contention that Vivanco is liable for the breach of a nondelegable duty. No statute or case imposes on a consulting physician a nondelegable duty to provide patient information to an attending physician through a direct conversation, the court said, declining to create such a duty here.

The court also found evidence in the record from which the jury could have reasonably concluded Vivanco had not breached the standard of care. Sundrani called back within an hour of Vivanco’s attempts to reach him and said that he would be coming to the hospital, the court found. On cross examination, the plaintiff’s own expert agreed that had he known this, he would not have been critical of Vivanco’s communication with Sundrani, despite his previous testimony that Vivanco had not complied with the applicable standard of care.

Citation: Collins v. Vivanco, 2020 WL 2079218 (Tex. App. Apr. 30, 2020).