Motion for Summary Judgment in DWAIN MALONE vs. TEXAS HEART HOSPITAL OF THE SOUTHWEST LLPet al| Trellis.Law

On July 13, 2021 a Motion,Ex Parte was filed involving a dispute between Malone, Dwain, and Advanced Kidney Care Of North Texas, Pllc, Beacon Emergency Services Team, Pa, Curry, Matthew W., Md, Erwin Jr, Gary, Md, Healthtexas Provider Network, Moore, David O., Md, Reddy, Samitha, Md, Sheena, Douglas A., Md, Texas Heart Hospital Of The Southwest Llp, for MEDICAL MALPRACTICE in the District Court of Dallas County.

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FILED
3/8/2024 8:50 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
CAROLYN SELLERS DEPUTY

CAUSE NO. DC-21-09077

DWAIN MALONE, Individually and IN THE DISTRICT COURT
As Personal Representative of the
ESTATE OF LINDA MALONE,

Plaintiff,
Vv.

TEXAS HEART HOSPITAL OF THE
SOUTHWEST LLP d/b/a BAYLOR
SCOTT & WHITE THE HEART
HOSPITAL — PLANO; MATTHEW W.
CURRY, M.D.; DAVID O. MOORE, DALLAS COUNTY, TEXAS
M.D.; HEALTHTEXAS PROVIDER
NETWORK d/b/a BAYLOR SCOTT &
WHITE CARDIAC SURGERY
SPECIALISTS; GARY ERWIN JR.,
M.D.; SAMITHA REDDY, M.D.;
ADVANCED KIDNEY CARE OF
NORTH TEXAS, PLLC; DOUGLAS A.
SHEENA, M.D. and BEACON
EMERGENCY SERVICES TEAM, P.A,

Defendants. 101% JUDICIAL DISTRICT

DEFENDANTS SAMITHA REDDY, M.D. AND ADVANCED_KIDNEY CARE OF
NORTH TEXAS, PLLC.’S FIRST AMENDED NO-EVIDENCE
MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

Come now Defendants Samitha Reddy, M.D. and Advanced Kidney Care of North Texas,

PLLC (“Defendants”), in the above-styled and numbered cause, and file their No-Evidence Motion

for Summary Judgment and would respectfully show the Court the following:

lL
INTRODUCTION

On July 13, 2021, Plaintiff Dwain Malone filed a wrongful death lawsuit against multiple

healthcare providers including but not limited to Samitha Reddy, M.D. and Advanced Kidney Care

DEFENDANTS SAMITHA REDDY, M.D. AND ADVANCED KIDNEY CARE OF NORTH TEXAS, PLLC’S
FIRST AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
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of North Texas, PLLC (“AKC”). The suit arises from the in-hospital death of Mr. Malone’s wife,

Linda Malone, in May 2019. One of the named physicians, Dr. Reddy, was the on-call nephrologist

who was involved in the patient’s care on or about May 4, 2019. She, along with AKC, is entitled

to summary judgment as a matter of law because Plaintiff cannot provide any credible evidence

from a qualified expert that Dr. Reddy violated the standard of care or was a proximate cause of

the patient’s death.

I.
FACTUAL BACKGROUND

Linda Malone presented to Baylor Scott & White The Heart Hospital — Plano on May 1,

2019, for two-vessel cardiac artery bypass grafting surgery. Plaintiffs Original Petition alleges

that, on the morning of May 4, Dr. Reddy came to perform her rounds and despite noting that

Mrs. Malone was suffering from respiratory failure, and at risk for intubation, nothing further was

done.' Plaintiff further alleges that Dr. Reddy was responsible for noting the changes in

Mrs. Malone’s condition and obtaining the proper consult or critical care intervention at the time

that she rounded on Mrs. Malone.” Mrs. Malone died the following day. Plaintiff contends

Dr. Reddy was negligent and grossly negligent, and her actions caused Mrs. Malone’s death.

Plaintiff has brought a vicarious liability claim against AKC for the alleged negligence acts or

omissions of Dr. Reddy.

However, after two years and eight months of litigation, Plaintiff has provided no credible

evidence to substantiate his allegations against Dr. Reddy and AKC. Specifically, there is no

evidence that Dr. Reddy breached the applicable standard of care, or that a breach of the standard

of care by her proximately caused the death of Mrs. Malone. To the contrary, the uncontested

| See Plaintiffs’ Original Petition, attached as Exhibit A, at p. 6, J§ 27.
? See Plaintiffs’ Original Petition, at p. 8, {| 39.

DEFENDANTS SAMITHA REDDY, M.D. AND ADVANCED KIDNEY CARE OF NORTH TEXAS, PLLC’S.
FIRST AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
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testimony of Dr. Reddy confirms that the patient was not in any acute respiratory distress at the

time of her rounds on May 4" and further that this patient carried a diagnosis of respiratory failure

throughout her admission and, in fact, was in chronic respiratory failure.? Therefore, there was no

change in condition at the time of Dr. Reddy’s care and treatment of this patient prompting her to

act and, further, no act or omission on Dr. Reddy’s part caused the death of this patient. For these

reasons, Dr. Reddy and AKC are entitled to summary judgment on all claims.

Hl.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

A. Applicable Law

Under Rule 166a(i) of the Texas Rules of Civil Procedure, “[a]fter adequate time for

discovery, a party without presenting summary judgment evidence may move for summary

judgment on the ground that there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial.” TEX. R. Cv. P. 166A(1).

In a no-evidence motion for summary judgment under Rule 166a(i), once the movant alleges that

there is no evidence on one or more elements of the non-movant’s claim, the burden shifts to the

non-movant to raise a “genuine issue of material fact” on each element challenged in the no-

evidence motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); Dow Chemical Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001). Plaintiff must therefore produce evidence on the

challenged elements of the causes of action. A “genuine issue of material fact” exists if more than

a scintilla of evidence establishing the existence of the challenged element is produced which

would enable reasonable jurors to differ in their conclusions. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004). This evidence must also be competent and admissible. See TEX. R.

Civ. P. 166A(1). Merely setting forth factual and/or legal conclusions and conclusory statements

3 See deposition transcript of Samitha Reddy, M.D., attached as Exhibit B, Page 80:20-82:3.

DEFENDANTS SAMITHA REDDY, M.D. AND ADVANCED KIDNEY CARE OF NORTH TEXAS, PLLC’S
FIRST AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
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will not suffice and fails to raise a fact issue. Heiser v. Ecker Corp., 983 S.W.2d 313, 316 (Tex.

App.—Fort Worth 1998, no pet.). Unless the non-movant meets its burden of producing summary

judgment evidence raising a genuine issue of material fact as to each challenged element, the Court

must grant the no-evidence motion. TEX. R. Civ. P. 166A(1); Hamilton v. Wilson, 249 S.W.3d 425,

426 (Tex. 2008) (per curiam).

B. An Adequate Time for Discovery Has Passed

As set out above, No-Evidence Motions for Summary Judgment are appropriate only after

an adequate time for discovery has passed. There is no requirement that discovery be completed.

The requirement is simply an adequate amount of time. See Specialty Retailers, Inc. v. Fuqua, 29

S.W.3d 140, 145 (Tex.App.—Houston [14th Dist.] 2000, pet. denied). Whether a non-movant had

adequate time for discovery under Rule 166(a)(i) is case specific, and there is no bright line test to

determine whether an adequate time for discovery has passed. See Rest. Teams Int'l, Inc. v. MG

Sec. Corp., 95 S.W.3d 336, 339 (Tex.App.—Dallas 2002, no pet.).

Here, an adequate time has passed. The case has been on file for two years and eight months

and is set for trial on November 11, 2024. The required elements of Plaintiffs claims including

standard of care, alleged breach of the standard of care, and proximate cause must be established

by expert testimony and although an adequate time for discovery has passed, Plaintiff has no

evidence to support their claims. Methodist Hospital v. German, 369 S.W.3d 333, 339 (Tex.App.—

Houston [1* Dist.] 2012, no pet.); Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010). As such,

Defendants’ No-Evidence Motion for Summary Judgment should be granted.

Cc. Plaintiff Has No Evidence to Support His Claims

In his Petition, Plaintiff has asserted claims of negligence as well as gross negligence.

Plaintiff has no evidence of one or more necessary elements of each of these causes of action, and

as such Defendants are entitled to no-evidence summary judgment on all claims.

DEFENDANTS SAMITHA REDDY, M.D. AND ADVANCED KIDNEY CARE OF NORTH TEXAS, PLLC’S.
FIRST AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
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1 Plaintiff Has No Competent Evidence of Breach or Causation to Support his
Claim for Medical Negligence.

Plaintiff alleges that Defendants Dr. Reddy’s, and accordingly AKC’s, actions or inactions

in the care of Mrs. Malone were medically negligent. Thus, Plaintiff has the burden of proof to

show that: (1) Defendants had a duty to act according to a certain standard; (2) Defendants

breached that standard or failed to act in accordance with the standard; (3) Plaintiff suffered injury;

and (4) the breach of the standard proximately caused the resulting injury. Schneider v. Haws, 118

S.W.3d 886, 889 (Tex. App.—Amarillo 2003, no pet.). In order to avoid summary judgment, the

plaintiff must provide credible expert testimony supporting each element of his claim. LeNorte v.

Cohen, 979 $.W.3d 723, 727-28 (Tex. App.—Houston [14th Dist.] 1998, no pet.). A expert must

testify with reasonable medical probability that the actions or omissions of the defendant health

care provider were below the standard of care and caused the harmed alleged. Park Place Hosp.

v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Duffv. Yelin, 751 S.W.2d 175, 176 (Tex.

1988). Plaintiff has no competent evidence from a qualified expert witness establishing the care

provided by Dr. Reddy fell below the standard of care. Further, Plaintiff has no competent evidence

from a qualified expert witness establishing Dr. Reddy’s care was a proximate cause of

Mrs. Malone’s death. Furthermore, Plaintiff has no competent evidence from a qualified expert

witness establishing that it was foreseeable to Dr. Reddy that Mrs. Malone would die as a result of

Dr. Reddy’s care.

Plaintiff has no evidence on at least two essential elements of their negligence claim.

Plaintiff has no evidence that Defendants breached the standard of care or that any alleged breach

of the standard of care by Defendants proximately caused their claimed injuries. Defendants are

entitled to no-evidence summary judgment on Plaintiff claims of medical negligence.

Plaintiff has also alleged that the Defendants’ purported acts and/or omissions amounted

to gross negligence. Gross negligence is composed of both an objective element and a subjective

element. TEX. Civ. PRAC. & REM. CODE § 41.001(11). Dr. Reddy and AKC are entitled to summary

judgment on the claim of gross negligence because Plaintiff has provided no evidence supporting

either prong of the gross negligence claim. Plaintiff has provided no evidence that Dr. Reddy or

AKC intended to harm Mrs. Malone. Plaintiff has provided no evidence that any alleged act or

omission of Dr. Reddy and AKC —involved an extreme degree of risk, considering the probability

and magnitude of the potential harm to others. See TEX. Civ. PRAC. & REM. CODE § 41.001(11)(A).

There is also no evidence of any alleged act or omission of which Dr. Reddy and AKC had an

actual, subjective awareness of the risk involved but nevertheless proceeded with conscious

indifference to the rights, safety, or welfare of Mrs. Malone. See TEX. Clv. PRAC. & REM. CODE §

41.001(11)(B). Thus, no evidence has been presented that Dr. Reddy and AKC were grossly

negligent.

Since the filing of this case on July 13, 2021, Plaintiff has not and cannot provide any

competent evidence to demonstrate that Dr. Reddy, and accordingly AKC, was negligent in the

care and treatment of Mrs. Malone. Without competent, expert testimony on the essential elements

of their claims, Plaintiff's lawsuit cannot proceed to trial. Plaintiff is unable to raise a genuine issue

of material fact on the issues of negligence. As such, Defendant is entitled to summary judgment.

vy
PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants Samitha Reddy, M.D. and

Advanced Kidney Care of North Texas, PLLC pray that this Honorable Court grant their

No-Evidence Motion for Summary Judgment, and pray for such other and further relief, both at

law and in equity, to which they may be justly entitled.

STEED DUNNILL REYNOLDS
BAILEY STEPHENSON LLP

go
By:
WILLIAM C. DUNNILL
State Bar No.00793655
billydunnill@steedlawfirm.com
DANA MORGAN
State Bar No. 24007705
DanaMorgan@steedlawfirm.com
1717 Main St. Ste. 2950
Dallas, TX 75201
469/698-4200 / Fax: 469/698-4201

ATTORNEYS FOR DEFENDANTS
SAMITHA REDDY, M.D. AND ADVANCED
KIDNEY CARE OF NORTH TEXAS, PLLC

T hereby certify that on this the 8th day of March, 2024, a true and correct copy of the
foregoing instrument has been forwarded to all counsel of record as follows:

Robert L. Chaiken 0 By certified mail, return receipt requested
Carrie P. Kitner 1) By courier receipted delivery
CHAIKEN & CHAIKEN, P.C. (1 By telephonic document transfer
5717 Legacy Drive, Suite 250 1 By hand delivery
Plano, Texas 75024 01 By first class mail
Attorneys for Plaintiff & By E-Filing
Ty Bailey Oo By certified mail, return receipt requested
Regan Ewing o By courier receipted delivery
THIEBAUD REMINGTON THORNTON o By telephonic document transfer
BAILEY LLP ] By hand delivery
Two Energy Square 01 By first class mail
4849 Greenville Avenue, Suite 1150 & By E-Filing
Dallas, Texas 75206
Attorneys for Defendants Douglas A. Sheena,
MD and Beacon Emergency Services Team,
P.A,

7
TJ
DANA MORGAN

DEFENDANTS SAMITHA REDDY, M.D. AND ADVANCED KIDNEY CARE OF NORTH TEXAS, PLLC’S.
FIRST AMENDED NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
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EXHIBIT A
1
JURY DEMAND 7/13/2021 4:38 PM
FELICIA PITRE
9 CIT ESERVE DISTRICT CLERK
DALLAS CO., TEXAS
Belinda Hernandez DEPUTY

CAUSE No, DC-21-09077
DWAIN MALONE, Individually and § IN THE DISTRICT COURT
as Personal Representative of the §
ESTATE OF LINDA MALONE, §
Plaintiff,

Vv. DALLAS COUNTY, TEXAS

TEXAS HEART HOSPITAL OF THE
SOUTHWEST LLP d/b/a BAYLOR
SCOTT & WHITE THE HEART
HOSPITAL - PLANO; MATTHEW W.
CURRY, M.D; DAVID O. MOORE,
M.D.; HEALTHTEXAS PROVIDER
NETWORK d/b/a BAYLOR SCOTT &
WHITE CARDIAC SURGERY
SPECIALISTS; GARY ERWIN JR.,
M.D.; SAMITHA REDDY, M.D.;
ADVANCED KIDNEY CARE OF
NORTH TEXAS, PLLC; DOUGLAS A.
A. SHEENA, M.D. and BEACON
EMERGENCY SERVICES TEAM, PA,

Defendants. 101st JUDICIAL DISTRICT
—_

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE:

Dwain Malone, Individually and as Representative of the Estate of Linda Malone

(“Plaintiff”) files this Original Petition complaining of Texas Heart Hospital of the Southwest LLP

d/b/a Baylor Scott & White The Heart Hospital — Plano; Matthew W. Curry, M.D.; David O.

Moore, M.D.; HealthTexas Provider Network d/b/a Baylor Scott & White Cardiac Surgery

Specialists; Gary Erwin Jr., M.D.; Samitha Reddy, M.D.; Advanced Kidney Care of North Texas,

PLLC; Douglas A. Sheena, M.D.; and Beacon Emergency Services Team, PA (“Defendants”) and

for causes of action respectfully shows as follows:

PLAINTIFF’S ORIGINAL PETITION PAGE 1
DISCOVERY CONTROL PLAN

1 Discovery is intended to be conducted under Level 3 of the Texas Rules of Civil

Procedure, Rule 190.

JURISDICTION AND VENUE

2. The Court has jurisdiction over this matter in that the subject matter and amount in

controversy is within the jurisdictional limits of this Court.

3 Venue is proper in Dallas County because one or more of the Defendants who are

natural persons had their residence in Dallas County at the time the cause of action accrued.

Additionally, one or more of the company Defendants had their principal office and/or principal

place of business in Dallas County at the time the cause of action accrued.

4 Plaintiff seeks monetary relief over $1,000,000.

PARTIES

5 Plaintiff Dwain Malone, Individually and as Representative of the Estate of Linda

Malone is an individual residing in Garland, Dallas County, Texas.

6. Defendant Texas Heart Hospital of the Southwest LLP d/b/a Baylor Scott & White

The Heart Hospital - Plano (“Baylor Heart”) is a Texas limited liability partnership which can be

served with process by serving its partner: Mark Valentine, CEO, 2001 Bryan Street, Suite 2200,

Dallas, Texas 75201.
7
Defendant Matthew W. Curry, M.D. (“Curry”) is an individual who resides in

Richardson, Dallas County, Texas and who may be served with process at 314 Sutton Place,

Richardson, Texas 75080.

PLAINTIFF’S ORIGINAL PETITION PAGE 2
8 Defendant David O. Moore, M.D. (“Moore”) is an individual who resides in Dallas,

Dallas County, Texas and who may be served with process at 6629 Aberdeen Ave., Dallas, Texas

75230.

9 Defendant HealthTexas Provider Network d/b/a Baylor Scott & White Cardiac

Surgery Specialists (“HTPN”) is a Texas non-profit corporation which may be served with process

by serving its registered agent: Corporation Service Company d/b/a CSC-Lawyers Incorporation

Service Company, 211 E. 7" St., Suite 620, Austin, Texas 78701.

10. Defendant Gary Erwin Jr., M.D. (“Erwin”) is an individual who resides in Farmers

Branch, Dallas County, Texas and who may be served with process at 12928 Epps Field Rd.,

Farmers Branch, Texas 75234.

le Defendant Samitha Reddy, M.D. (“Reddy”) is an individual who resides in

Lewisville, Denton County, Texas and who may be served with process at 1020 Damsel Caroline

Dr., Lewisville, Texas 75056.

12. Defendant Advanced Kidney Care of North Texas, PLLC (“Advanced Kidney

Care”) is a Texas professional limited liability company which may be served with process by

serving its registered agent: Scott A. Biedermann, M.D., 4708 Alliance Blvd., Suite 600, Plano,

Texas 75093.

it Defendant Douglas A. Sheena, M.D. (“Sheena”) is an individual who resides in

Dallas, Dallas County, Texas and who may be served with process at 5816 Joyce Way, Dallas,

Texas 75225.

14. Defendant Beacon Emergency Services Team, PA (“Beacon”) is a Texas

Professional Association with its principal office and place of business located in Dallas, Dallas

PLAINTIFF’S ORIGINAL PETITION PAGE 3
County, Texas. Beacon may be served with process by serving its registered agent: Michael H.

Cooper, 2323 Victory Ave., Suite 700, Dallas, Texas 75219.

PRE-SUIT NOTICE OF CLAIM

15 In accordance with Section 74.051 of the Texas Civil Practice & Remedies Code,

Plaintiff duly and properly notified Defendants of this healthcare liability claim by sending notice

to them at least 60 days prior to the filing of this Petition. Pleading in the alternative, the actual

filing of this suit shall satisfy any notice requirement. All other conditions precedent to the filing

of this suit have occurred or been performed.

BACKGROUND FACTS

16. At all times relevant, a physician-patient relationship existed between Linda

Malone on the one hand, and Defendants, on the other hand.

17. Defendant Baylor Heart holds itself out to the public as a hospital facility

specializing in the care of cardiac problems.

18. Defendants Curry and Erwin are physicians licensed to practice medicine by the

State of Texas who purportedly specialize in critical care medicine.

19. Defendant Moore is a physician licensed to practice medicine by the State of Texas

who purportedly specializes in cardiothoracic surgery. Defendant Moore was employed by or a

member of Defendant HTPN at the time of the incidents made the basis of this lawsuit.

20. Defendant Reddy is a physician licensed to practice medicine by the State of Texas

who purportedly specializes in nephrology, who was employed by Defendant Advanced Kidney

Care at the time of the incidents made the basis of this lawsuit.

PLAINTIFF’S ORIGINAL PETITION PAGE 4
21. Defendant Sheena is a physician licensed to practice medicine by the State of Texas

who purportedly specializes in emergency medicine, who was employed by Defendant Beacon at

the time of the incidents made the basis of this lawsuit.

22. On or about May 1, 2019, Linda Malone was admitted to Baylor Heart and

underwent, as termed by Defendant Moore who performed the surgery — an uncomplicated 2-

vessel bypass.

23. On May 2, 2019, the first post-operative day, Mrs. Malone was documented to be

“fluid overloaded”. She was evaluated by Defendant Curry and, despite noting that Mrs. Malone

was hypotensive requiring pressors and that she had hypoxemic respiratory failure requiring

mechanical ventilation, he elected to have her extubated.

24. Throughout the days on May 2" and 3", Mrs. Malone continued to have problems

with proper oxygenation and fluid regulation requiring increased amounts of supplemental oxygen.

25. At 5:30 a.m. on May 4", Defendant Erwin placed Mrs. Malone into a supine

position for placement of a Quinton catheter. Following placement of the Quinton catheter, Mrs.

Malone experienced worsening respiratory distress, with her oxygen levels dropping into the low

80’s. Defendant Erwin started Mrs. Malone on a BiPAP machine, despite the fact that her

condition required ultra-filtration in the presence of mechanical ventilation with positive pressure.

26. By 6:45 a.m. on May 4", the nurses were noting that Mrs. Malone was very anxious

because the BiPAP machine was continually alarming, and called for an intensivist to see Mrs.

Malone. There are no notations in the records indicating what the alarm or alarms were for the

BiPAP machine.

PLAINTIFF’S ORIGINAL PETITION PAGE 5
27. At approximately 6:50 a.m. on May 4'", Defendant Reddy came to perform her

rounds on Mrs. Malone. Despite noting that Mrs. Malone was suffering respiratory failure and at

risk for intubation, nothing further was done.

28. At 7 a.m. on May 4", Mrs. Malone was still poorly oxygenating and not tolerating

her BiPAP mask when Nurse Mahan requested respiratory therapy for treatment. Sometime after

this entry, Mrs. Malone stopped breathing. However, for an unknown reason, no telemetric or

bed-side alarms sounded, so no one knows for sure how long Mrs. Malone went without oxygen.

But what is clear is that none of the nurses or the physicians timely responded to her declining

condition.

29. Ultimately, one or more of the Defendants realized that Mrs. Malone had been

without oxygen and was not breathing and a “Code Blue” was formally called. Neither Defendants

Curry nor Erwin were in the hospital when the Code was called, resulting in a delayed response to

the resuscitative effort.

30. Defendants Sheena, Erwin and Curry were all allegedly present at some point after

the Code Blue was called. According to the Code Blue records, Defendant Curry made several

attempts to intubate Mrs. Malone, but was not able to successfully intubate her until 7:25 a.m.

This contradicts Defendant Curry’s Procedure Note indicating that he obtained endotracheal

intubation at 1:00.

31. Defendant Sheena as an emergency department physician was present prior to

Defendants Curry or Erwin, but failed to make any effort to intubate Mrs. Malone despite being

part of the code team and authorized to perform same, particularly given the absence of any other

physician.

PLAINTIFF’S ORIGINAL PETITION PAGE 6
32. Despite Defendants being able to establish a cardiac rhythm and provide

oxygenation and ventilation, far too much time had elapsed and Mrs. Malone suffered an anoxic

insult to her brain that ultimately led to her untimely and wrongful death on May 5, 2021.

CAUSES OF ACTION

A. Wrongful Death and Survival Causes of Action Against All Defendants.

33. This suit is brought under the Texas Wrongful Death Statute (TEX. CIv. PRAC. &

REM.CODE, CHAPTER 71(A) §71.001-71.011) by Linda Malone’s surviving spouse. Further, this

suit is also brought under the Texas Survival Statute (TEX. Civ. PRAC. & REM. CODE, CHAPTER

71(B) §71.021 et. seq.). Plaintiff brings this suit in his individual capacity and on behalf of the

Estate of Linda Malone and on behalf of all parties entitled to bring such an action for the injuries,

damages and ultimate death of Linda Malone.

34. The conduct of all of the Defendants as described herein caused and/or contributed

to the unnecessary, untimely and wrongful death of Linda Malone and the Plaintiff seeks to recover

all damages occasioned by the Defendants’ actions and inactions as set forth below.

35. Defendants Baylor Heart, HTPN, Advanced Kidney Care and Beacon are

responsible and liable for the negligent acts or omissions of their respective employees, agents,

ostensible agents and/or members, under the doctrine of respondeat superior, as each such act or

omission occurred in the course and scope of the actor’s employment, agency, ostensible agency

and/or membership. Additionally, they are responsible and liable for their own acts of negligence,

as detailed below.

B. Negligence and Gross Negligence of Defendants Curry, Erwin, Moore, Reddy and
Sheena.

36. Defendants were obligated to deliver to Linda Malone non-negligent medical

assessment, diagnosis, treatment and/or medical care while she was at Baylor Heart.

PLAINTIFF’S ORIGINAL PETITION PAGE 7
37. Defendants Curry and Erwin held themselves out as being specialists in the field of

post-surgical cardiac-related critical care medicine and pulmonary medicine, and functioned as

hospitalists primarily responsible for Mrs. Malone’s care. Defendants Curry and Erwin each owed

a duty to Plaintiff to properly and competently monitor, assess, diagnose and treat Mrs. Malone

with respect to her active medical conditions of which they knew about or should have known

about.

38. Defendant Moore held himself out as being a specialist in the field of cardio-

thoracic surgery and was responsible for Mrs. Malone’s care. Defendant Moore owed a duty to

Plaintiff to properly and competently monitor, assess, diagnose and treat Mrs. Malone with respect

to her active medical conditions of which he knew about or should have known about.

39. Defendant Reddy held herself out as an internal medicine/nephrology specialist and

was responsible for noting the changes in Mrs. Malone’s condition and obtaining the proper

consult or critical care intervention at the time that she rounded on Mrs. Malone.

40. Defendant Sheena held himself out to be a specialist in emergency medicine in a

post-surgical cardiac critical care setting. Dr. Sheena owed a duty to Plaintiff to properly and

competently monitor, assess, and treat Mrs. Malone at the time of the Code Blue.

41. During the relevant time period, these Defendants committed one or more of the

following acts or omissions, which amounted to acts and/or omissions which reasonably prudent

physicians would not have committed in or under the same or similar circumstances, proximately

causing the occurrences, injuries and damages complained of herein:

a. Failing to timely, properly, correctly and thoroughly examine and treat
Linda Malone at all times material, as set forth above;

Failing to properly and thoroughly assess and diagnose Linda Malone’s
medical conditions;

PLAINTIFF’S ORIGINAL PETITION PAGE 8
Failing to properly document Linda Malone’s physical condition;

Failing to provide Linda Malone with, or arrange for, adequate and/or
timely treatment for her medical conditions;

Failing to order proper treatment or care for Linda Malone which was
necessary and required under the circumstances presented and failing to do
so on a timely basis; and

Failing to properly and adequately communicate with each other and/or the
staff and/or physicians at Baylor Heart concerning any material changes in
her condition and the need for urgent and necessary care for Linda Malone.

42. The aforesaid negligent acts and omissions, when viewed objectively, involved an

extreme degree of risk considering the probability and magnitude of potential harm to Linda

Malone and, though the Defendants were subjectively aware of such risk, they proceeded with

conscious disregard for the rights, safety and/or welfare of Linda Malone. For these reasons,

Plaintiff contends that these Defendants’ alleged acts of negligence rise to the level of gross

negligence as defined by TEX. Crv. PRAC. & REM. CODE §41.001(11).

Cc. Negligence and Gross Negligence of Defendants Baylor Heart, HTPN, Beacon and
Advanced Kidney.

43. Defendants Baylor Heart, HTPN, Beacon and Advanced Kidney owed a duty to

Plaintiff to ensure that their respective employees, agents, ostensible agents and members, among

other things, monitored, assessed, diagnosed, and treated or provided for the assessment, diagnosis

and/or treatment of Linda Malone’s medical conditions, in accordance with the applicable

standards of care.

44, Baylor Heart owed an additional duty to Linda Malone to ensure that the policies

and procedures which governed the delivery of health care and related services at Baylor Heart,

whether through its own employees, agents, ostensible agents and representatives, or others

PLAINTIFF’S ORIGINAL PETITION PAGE 9
providing such care or related services, were properly adhered to, implemented and enforced.

These Defendants breached these duties as is more fully described below.

45. In addition to their respondeat superior liability, at all relevant times, Defendants

Baylor Heart, HTPN, Beacon and Advanced Kidney committed one or more of the following acts

or omissions, either directly or through their employees, agents, ostensible agents and

representatives, each of which amounted to an act and/or omission which a reasonably prudent

hospital and/or nurses, staff or agents and/or physicians practice group would not have committed

in the same or similar circumstances, proximately causing and/or contributing to the occurrences,

injuries and damages complained of herein:

a. Failing to properly document and recognize Linda Malone’s physical
condition and material changes in her condition;

Failing to properly transmit documentation of Linda Malone’s physical
condition to the appropriate and necessary recipients;

Failing to properly and timely communicate or to ensure the proper and
timely communication of information pertaining to Linda Malone’s
physical condition among and between the various health care providers
who were responsible for treating and diagnosing her condition, and/or
informing them of changes in her diagnosis or condition;

Authorizing the doing and the manner of the acts and omissions in question;

Recklessly employing personnel who were unfit, incompetent, and/or
unqualified to perform the duties and tasks assigned to them;

Employing personnel in managerial positions who were acting within the
course and scope of their employment at the time the negligent acts and/or
omissions occurred and failed to stop or prevent such acts and/or omissions;

Through their officers, managers, supervisors, directors, administrators,
head or charge nurses, ratifying or approving the negligent acts and/or
omissions in question;

Failing to have policies and procedures in place to facilitate timely and/or
emergent consultation;

PLAINTIFF’S ORIGINAL PETITION PAGE 10
Failing to have policies and procedures in place to document delivery of
diagnostic notes;

Failing to have to have a coordinated and comprehensive system for medical
record creation; and, additionally or alternatively, and/or

Failing to have qualified staff on-site and available for timely treatment of
emergent medical conditions.

46. The aforesaid negligent acts and omissions, when viewed objectively, involved an

extreme degree of risk considering the probability and magnitude of potential harm to Linda

Malone and, though Defendants Baylor Heart, HTPN, Beacon and Advanced Kidney, through the

acts of their authorized personnel, were subjectively aware of such risk, they proceeded with

conscious disregard for the rights, safety and/or welfare of Linda Malone. For these reasons,

Plaintiff contends that Defendants Baylor Heart, HTPN, Beacon, Advanced Kidney and their

authorized personnel’s alleged acts of negligence rise to the level of gross negligence as defined

by TEX. CIv. PRAC. & REM. CODE §41.001(7)(B).

D. Joint Enterprise Liability.

47. At all times material, Defendant HTPN was a physician practice group which was

wholly owned or owned in part by Baylor Heart. This practice group and its physicians, including

Dr. Moore, practice exclusively at Baylor facilities subject to the control and direction of these

entities. As such, a Joint Enterprise existed between the parties, because they have:

a. An agreement, either express or implied with respect to the enterprise or
endeavor;

A common purpose;

A community of pecuniary interest in the common purposes of the
enterprise among the members of the group, and,

An equal right to a voice in the direction of the enterprise, which gives an
equal right of control.

PLAINTIFF’S ORIGINAL PETITION PAGE 11
48. By virtue of the relationship between Defendants HTPN and Baylor Heart at the

time of the incident in question, the negligence of HTPN and its agents and employees should be

imputed to Baylor Heart, jointly and severally as a matter of law, and vice versa.

DAMAGES

49. As a direct and proximate cause or result of the negligence and gross negligence

described herein, Plaintiff has incurred the following damages:

A. Estate of Linda Malone:

Past medical expenses;

Past physical pain and suffering;

¢. Past mental anguish; and,

d. Reasonable and necessary burial expenses

B. Plaintiff Dwain Malone:

a. Past and future mental pain and anguish;

b. Past and future pecuniary loss; and

Cc Loss of consortium and companionship

50. Plaintiff is entitled to recover from each of the Defendants, jointly and severally,

all actual damages occasioned by the Defendants’ respective acts of negligence and further, to

recover from those of the Defendants named above who are grossly negligent, an award of punitive

or exemplary damages occasioned by their grossly negligent conduct, all in an amount that is

within the jurisdictional limits of the Court.

JURY TRIAL

ie Trial by jury is demanded.

PLAINTIFF’S ORIGINAL PETITION PAGE 12
WHEREFORE PREMISES CONSIDERED, Plaintiff requests that each of the

Defendants be cited to appear and answer, and that final judgment be entered in the Plaintiff's

favor awarding the following:

a. Actual damages;

b Punitive or exemplary damages;

Pre-judgment interest at the highest legal rate allowed by law;

Post-judgment interest at the highest legal rate allowed by law; and,

Such other and further relief at law or in equity, to which Plaintiff may show
himself to be justly entitled.

Respectfully submitted,

/s/ Robert L. Chaiken
Robert L. Chaiken
State Bar No. 04057830
rchaiken@chaikenlaw.com
Carrie P. Kitner
State Bar No. 24074921
ckitner@chaikenlaw.com

CHAIKEN & CHAIKEN, P.C.
5717 Legacy Dr., Suite 250
Plano, Texas 75024
(214) 265-0250 telephone
(214) 265-1537 facsimile

ATTORNEYS FOR PLAINTIFF

PLAINTIFFS’ ORIGINAL PETITION PAGE 13
PLAINTIFFS’ ORIGINAL PETITION PAGE 14
EXHIBIT B
Samitha Reddy, M.D.

CAUSE NO. DC-21-09077

DWAIN MALONE, INDIVIDUALLY IN THE DISTRICT COURT OF
AND AS PERSONAL
REPRESENTATIVE OF THE
ESTATE OF LINDA MALONE,

Plaintiff,

vs. DALLAS COUNTY, TEXAS

TEXAS HEART HOSPITAL OF THE
SOUTHWEST LLP D/B/A BAYLOR
SCOTT & WHITE THE HEART
HOSPITAL - PLANO; MATTHEW
W. CURRY, M.D; DAVID O.
MOORE, M.D.; HEALTHTEXAS
10 PROVIDER NETWORK D/B/A
BAYLOR SCOTT & WHITE
11 CARDIAC SURGERY
SPECIALISTS; GARY ERWIN
12 JR., M.D.; SAMITHA REDDY,
M.D.; ADVANCED KIDNEY CARE
13 OF NORTH TEXAS, PLLC;
DOUGLAS A. SHEENA, M.D. AND
14 BEACON EMERGENCY SERVICES
TEAM, PA,
15
Defendants. 101ST JUDICIAL DISTRICT
16
17
18
------
19
ORAL DEPOSITION OF
20
SAMITHA REDDY, M.D.
21
SEPTEMBER 8, 2023
22
ee
23
24
25

Golkow Litigation Services Page 1 (1)
Samitha Reddy, M.D.
Page 2 Page 4
1 ORAL DEPOSITION OF SAMITHA REDDY, M_D., produced as 1 INDEX
a witness at the instance of the PLAINTIFF, and duly 2 PAGE
sworn, was taken in the above-styled and numbered cause 3 Appearances.
4
on September 8, 2023, from 12:14 p.m. to 2:18 p.m.,
SAMITHA REDDY, M.D.
before Mercedes Arellano, CSR in and for the State of
Texas, reported by machine shorthand, at the law offices Examination by Robert L. Chaiken..
of Steed Dunnill Reynolds Bailey Stephenson, LLP, 1717 6
Main Street, Suite 2950, Dallas, Texas, pursuant to the 7 Signature and Changes. 97
Texas Rules of Civil Procedure. 8 Reporter's Certificate... 99
10 9
10
oo
11 EXHIBITS
/23 12 NO. DESCRIPTION PAGE
13 1 Progress Note 62
Bates MALONE 001630 through MALONE 001631
Jas 14
ps 15
16
Jae

Case Info

Judge

WILLIAMS, STACI Track Judge’s New Case

Case No.

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Document Filed Date

June 20, 2024

Case Filing Date

July 13, 2021

County

Parties

ADVANCED KIDNEY CARE OF NORTH TEXAS, PLLC Defendant
BAILEY, TY Attorney for the Defendant
BEACON EMERGENCY SERVICES TEAM, PA Defendant
CHAIKEN, ROBERT L Attorney for the Plaintiff
CURRY, MATTHEW W., MD Defendant
DUNNILL, WILLIAM Attorney for the Defendant
ERWIN JR, GARY, MD Defendant
HEALTHTEXAS PROVIDER NETWORK Defendant
MALONE, DWAIN Plaintiff
MOORE, DAVID O., MD Defendant
REDDY, SAMITHA, MD Defendant
SCULLY, JOHN A Attorney for the Defendant
SHEENA, DOUGLAS A., MD Defendant
TEXAS HEART HOSPITAL OF THE SOUTHWEST LLP Defendant
Carrie Kitner Attorneys for Plaintiffs
Dana Morgan Attorneys for Defendants
Cory Sutker Attorneys for Defendants
Bryce Buchmann Attorney
Linda Maloney Attorney
Eric Walker Attorneys for Plaintiffs
Ryan Lurich Attorneys for Defendants
Matthew Muckleroy Attorneys for Defendants
Jason Cross Attorney
Tina Hansard Attorney
Christopher Kuhner Attorney

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Motion,Ex Parte: DWAIN MALONE vs. TEXAS HEART HOSPITAL OF THE SOUTHWEST LLPet al

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