Preview
is-t ts 1653403
“a
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07 May16 P2:16
yet District Clerk
CAUSE NO. C-200573415 s~s Harris District
FRANK GUTIERREZ, INDIVIDUALLY
and AS REPRESENTATIVE OF THE
IN THE DISTRICT COURT p.
ASSESSE|
lene —
ESTATE OF THERESA GUTIERREZ
and AS NEXT FRIEND OF MICHELLE
GUTIERREZ, A MINOR, AMANDA
GUTIERREZ, FRANK GUTIERREZ, JR., and
PATRICIA RAMIREZ
VS. 11™ JUDICIAL DISTRICT
UNIVERSITY OF TEXAS HEALTH
SCIENCE CENTER AT HOUSTON HARRIS COUNTY, TEXAS
PLAINTIFFS’ GIN. ETITION
TO THE HONORABLE COURT:
FRANK GUTIERREZ, INDIVIDUALLY and AS REPRESENTATIVE OF THE
ESTATE OF THERESA GUTIERREZ and AS NEXT FRIEND OF MICHELLE GUTIERREZ,
A MINOR, AMANDA GUTIERREZ, FRANK GUTIERREZ, JR. and PATRICIA RAMIREZ,
plaintiffs, complain of UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT
HOUSTON, defendant, and for cause of action show:
1. Discovery Level 3
The plaintiffs plead that discovery should be conducted in accordance with a tailored
discovery control plan under Civil Procedure Rule 190.4.
t
2. Parties and Provision for Service of Citation
Plaintiffs are individuals residing in Harris County, Texas.
Defendant, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON
(“UT Health Center”) has been served with citation and is before the court.
3. Plaintiff's Treatments
On or about September 7, 2003, Theresa Gutierrez was involved in an automobile
accident in Houston, Texas, resulting in rib fractures and some internal injury, which
necessitated transportation to North East Hospital. At North East Hospital, staff determined that
Theresa Gutierrez was better served by transferring her to Hermann Hospital rather then treating
her at North Bast Hospital. On September 8, 2003, Theresa Gutierrez was recuperating at
Hermann Hospital to the point where she was able to walk and sit up in a chair, On September 9,
2003, while still hospitalized as a patient in Hermann Hospital, Theresa Gutierrez was found to
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at the time of
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be suffering from low oxygenation. A few hours later Theresa’s condition deteriorated so that a
decision to intubate was made by her attending physicians. Dr. Christiane Vogt-Harenkamp, a
UT Health Center anesthesiologist, and/or her resident performed the intubation. Immediately
after intubation, Theresa Gutierrez’ heart rate and blood pressure severely dropped causing
Theresa to lapse into a coma. One-half hour after beginning resuscitating procedures, Dr. Vogt-
Harenkamp discovered that the intubation tube was incorrectly placed in Theresa’s esophagus
instead of her airway. Theresa Gutierrez was pronounced dead at 10:45 o’clock p.m. on
September 9, 2003.
4. Defendant’s Violation of Duty of Care
On the occasion complained of, UT Health Center violated the duty of care to plaintiffs’
decedent to exercise the ordinary care and diligence exercised by other physicians in the same or
similar circumstances, and was negligent, during the course of the treatment given to Theresa
Gutierrez on September 9, 2003 in one or more of the following particulars:
a. The defendant’s employees failed to properly insert and/or secure an intubation
tube.
The defendant’s employee failed, using tangible property, to properly monitor the
placement of the intubation tube.
The defendant’s employees failed to re-position the intubation tube when they
knew or should have known that the tube was not in proper position.
The defendant’s employees disregarded a warning of an improper intubation.
The defendant furnished a defective intubation tube, and/or defective monitoring
devices.
Each and every one of the foregoing acts and omissions, taken separately and
collectively, constitute a direct and a proximate cause of the injuries and damages described
below, and the ultimate death of Theresa Gutierrez.
5. Respondeat Superior
At all times material, Dr. Vogt-Harenkamp and her resident were employees of UT
Health Center, working within the course and scope of their employment for the defendant.
6. Damages
As a direct and proximate cause of the defendant’s negligence, Theresa Gutierrez
suffered an agonizing death. As a further result of the defendant’s negligence, the plaintiffs have
suffered great physical and mental pain and anguish, and in all reasonably probability will
continue to suffer in this manner for a long time into the future, if not for the balance of their
natural life.
By reason of the death of Theresa Gutierrez described above, the plaintiffs have suffered
losses and damages in a sum that is within the jurisdictional limits of the court, for which they
now sue,
7. Notice
Defendant had actual notice of the instrumentality, the occurrence made the subject of
this suit and of its own acts and/or omissions, which gave rise to the occurrence and which
resulted in the death of Theresa Gutierrez.
Alternatively, it was impossible to give statutory notice to the defendant because
defendant and defendant’s employees’ identities were hidden from patients at Memorial
Hermann Hospital in general, and the plaintiffs specifically. Plaintiffs had no knowledge that
defendant was involved in the care of Theresa Gutierrez. Plaintiffs had no reason to know that a
governmental entity was involved in her care, and more specifically that this defendant was
involved. Requiring plaintiffs to send notice to an unknown and undisclosed party violates
plaintiffs’ constitutional guarantees of due process, equal protection, and open courts, and results
in an absurd reading of the Texas Tort Claims Act.
The plaintiffs have otherwise in all respects complied with all applicable provisions of
Chapter 74 and 101 of the Civil Practice and Remedies Code.
8. Agency
Under Chapter 101 Tex. Civ. Prac. & Rem. Code Ann., Dr. Christiane Vogt-Harenkamp
is the agent of UT Health Center. UT Health Center is estopped from alleging limitations as a
defense, and estopped from alleging no jurisdiction on the basis of failure to serve the defendant
with an expert report pursuant to Chapter 74 Tex. Civ. Prac. & Rem. Code Ann. Dr. Christiane
Vogt-Harenkamp was timely served with plaintiffs’ expert reports on or about March 14, 2006.
Upon information and belief, Dr. Christiane Vogt-Harenkamp served plaintiff's expert reports on.
defendant prior to being non-suited pursuant to Chapter 101, Tex. Civ. Prac. & Rem. Code Ann.
9, Fraudulent Concealment
Plaintiffs adopt and incorporate the allegations set out in paragraph no. 7.
Limitations tolled until on or about June 14, 2006, the date that plaintiffs were first made
aware that defendant, UT Health Center was involved in the care, treatment and injury resulting
in the death of Theresa Gutierrez, Unaware of UT Health Center’s involvement, plaintiffs had no
reason to believe that they could state a claim against UT Health Center until such fact was
disclosed by Dr. Christiane Vogt-Harenkamp’s attorney of record. Dr. Christiane Vogt-
Harenkamp and UT Health Center have a duty to disclose the mechanism of injury resulting in
death and the identity of the party responsible for the care and treatment of the plaintiffs’
decedent. Concealment amounts to a constitutional violation in depriving the plaintiffs their
protected right of access to the courts and redress of grievances.
Even after suit was filed, the deception continued with UT Health Center’s acquiescence.
Attached as “Exhibit A” and incorporated as if fully set out, is Dr. Christiane Vogt-Harenkamp’s
response to requests for disclosure. In response to “b,” “the name, address, and telephone number
of any potential parties,” Dr. Christiane Vogt-Harenkamp responded, “Defendant is unaware of
any potential parties at this time.”
Defendant should be estopped from asserting limitations as a defense.
10. Third-Party Fraudulent Concealment
Plaintiffs adopt and incorporate the allegations set out in paragraph no. 7 and 9.
In addition to defendant and Dr. Christiane Vogt-Harenkamp, Memorial Hermann
Hospital System also had a duty to disclose the mechanism of injury resulting in death and the
identity of the party responsible for the care and treatment of the plaintiffs’ decedent. Memorial
Hermann Hospital System failed to disclose UT Health Center’s involvement in plaintiffs’
decedent’s care to the detriment of the plaintiffs.
Defendant should be estopped from asserting limitations as a defense.
10, Equitable Tolling of Limitations
Plaintiffs adopt and incorporate the allegations set out in paragraph nos. 7, 8, 9 and 10,
Defendant should be equitably estopped from asserting limitations as a defense.
WHEREFORE, plaintiffs request that on final trial the plaintiffs have judgment against
the defendant for a sum within the jurisdictional limits of the court, prejudgment and post-
judgment interest as provided by law, costs of suit, and such other and further relief to which the
plaintiffs may be justly entitled.
Respectfully submitted,
MOSS LAW OFFICE
5350 S. Staples, Suite 209
Corpus Christi, Texas 78411
(361) 992-8999 Telephone
(361) 992-8373 Telecopier
By:
Abraham Moss
State Bar No. 14581700
Fritz Barnett
BARNETT & CRADDOCK, L.L.P.
440 Louisiana, Suite 1400
Houston, Texas 77002
(713) 425-5300 Telephone
(713) 425-5301 Telecopier
ATTORNEYS FOR PLAINTIFFS
—- ee Re
Cc RVIC)
I hereby certify that a true and correct copy of the above and foregoing was served upon
all counsel of record, to wit:
Jason Warner Telecopied: # 512-463-2224
Assistant Attorney General
Tort Litigation Division
P. O. Box 12548 Capitol Station
Austin, Texas 78711-2548
by certified mail, return receipt requested, facsimile transmission, and/or hand delivery
pursuant to Rules 21 and 21(a), Tex. R. Civ. P. on this the 16" day of May 2007.
Abraham Moss
Preview
is-t ts 1653403 “a \~\ \ 07 May16 P2:16 yet District Clerk CAUSE NO. C-200573415 s~s Harris District FRANK GUTIERREZ, INDIVIDUALLY and AS REPRESENTATIVE OF THE IN THE DISTRICT COURT p. ASSESSE| lene — ESTATE OF THERESA GUTIERREZ and AS NEXT FRIEND OF MICHELLE GUTIERREZ, A MINOR, AMANDA GUTIERREZ, FRANK GUTIERREZ, JR., and PATRICIA RAMIREZ VS. 11™ JUDICIAL DISTRICT UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON HARRIS COUNTY, TEXAS PLAINTIFFS’ GIN. ETITION TO THE HONORABLE COURT: FRANK GUTIERREZ, INDIVIDUALLY and AS REPRESENTATIVE OF THE ESTATE OF THERESA GUTIERREZ and AS NEXT FRIEND OF MICHELLE GUTIERREZ, A MINOR, AMANDA GUTIERREZ, FRANK GUTIERREZ, JR. and PATRICIA RAMIREZ, plaintiffs, complain of UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, defendant, and for cause of action show: 1. Discovery Level 3 The plaintiffs plead that discovery should be conducted in accordance with a tailored discovery control plan under Civil Procedure Rule 190.4. t 2. Parties and Provision for Service of Citation Plaintiffs are individuals residing in Harris County, Texas. Defendant, UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON (“UT Health Center”) has been served with citation and is before the court. 3. Plaintiff's Treatments On or about September 7, 2003, Theresa Gutierrez was involved in an automobile accident in Houston, Texas, resulting in rib fractures and some internal injury, which necessitated transportation to North East Hospital. At North East Hospital, staff determined that Theresa Gutierrez was better served by transferring her to Hermann Hospital rather then treating her at North Bast Hospital. On September 8, 2003, Theresa Gutierrez was recuperating at Hermann Hospital to the point where she was able to walk and sit up in a chair, On September 9, 2003, while still hospitalized as a patient in Hermann Hospital, Theresa Gutierrez was found to ORDER'S MEMO! RANDUM REC! r quality This i instrument is of poo! imaging at the time of ve be suffering from low oxygenation. A few hours later Theresa’s condition deteriorated so that a decision to intubate was made by her attending physicians. Dr. Christiane Vogt-Harenkamp, a UT Health Center anesthesiologist, and/or her resident performed the intubation. Immediately after intubation, Theresa Gutierrez’ heart rate and blood pressure severely dropped causing Theresa to lapse into a coma. One-half hour after beginning resuscitating procedures, Dr. Vogt- Harenkamp discovered that the intubation tube was incorrectly placed in Theresa’s esophagus instead of her airway. Theresa Gutierrez was pronounced dead at 10:45 o’clock p.m. on September 9, 2003. 4. Defendant’s Violation of Duty of Care On the occasion complained of, UT Health Center violated the duty of care to plaintiffs’ decedent to exercise the ordinary care and diligence exercised by other physicians in the same or similar circumstances, and was negligent, during the course of the treatment given to Theresa Gutierrez on September 9, 2003 in one or more of the following particulars: a. The defendant’s employees failed to properly insert and/or secure an intubation tube. The defendant’s employee failed, using tangible property, to properly monitor the placement of the intubation tube. The defendant’s employees failed to re-position the intubation tube when they knew or should have known that the tube was not in proper position. The defendant’s employees disregarded a warning of an improper intubation. The defendant furnished a defective intubation tube, and/or defective monitoring devices. Each and every one of the foregoing acts and omissions, taken separately and collectively, constitute a direct and a proximate cause of the injuries and damages described below, and the ultimate death of Theresa Gutierrez. 5. Respondeat Superior At all times material, Dr. Vogt-Harenkamp and her resident were employees of UT Health Center, working within the course and scope of their employment for the defendant. 6. Damages As a direct and proximate cause of the defendant’s negligence, Theresa Gutierrez suffered an agonizing death. As a further result of the defendant’s negligence, the plaintiffs have suffered great physical and mental pain and anguish, and in all reasonably probability will continue to suffer in this manner for a long time into the future, if not for the balance of their natural life. By reason of the death of Theresa Gutierrez described above, the plaintiffs have suffered losses and damages in a sum that is within the jurisdictional limits of the court, for which they now sue, 7. Notice Defendant had actual notice of the instrumentality, the occurrence made the subject of this suit and of its own acts and/or omissions, which gave rise to the occurrence and which resulted in the death of Theresa Gutierrez. Alternatively, it was impossible to give statutory notice to the defendant because defendant and defendant’s employees’ identities were hidden from patients at Memorial Hermann Hospital in general, and the plaintiffs specifically. Plaintiffs had no knowledge that defendant was involved in the care of Theresa Gutierrez. Plaintiffs had no reason to know that a governmental entity was involved in her care, and more specifically that this defendant was involved. Requiring plaintiffs to send notice to an unknown and undisclosed party violates plaintiffs’ constitutional guarantees of due process, equal protection, and open courts, and results in an absurd reading of the Texas Tort Claims Act. The plaintiffs have otherwise in all respects complied with all applicable provisions of Chapter 74 and 101 of the Civil Practice and Remedies Code. 8. Agency Under Chapter 101 Tex. Civ. Prac. & Rem. Code Ann., Dr. Christiane Vogt-Harenkamp is the agent of UT Health Center. UT Health Center is estopped from alleging limitations as a defense, and estopped from alleging no jurisdiction on the basis of failure to serve the defendant with an expert report pursuant to Chapter 74 Tex. Civ. Prac. & Rem. Code Ann. Dr. Christiane Vogt-Harenkamp was timely served with plaintiffs’ expert reports on or about March 14, 2006. Upon information and belief, Dr. Christiane Vogt-Harenkamp served plaintiff's expert reports on. defendant prior to being non-suited pursuant to Chapter 101, Tex. Civ. Prac. & Rem. Code Ann. 9, Fraudulent Concealment Plaintiffs adopt and incorporate the allegations set out in paragraph no. 7. Limitations tolled until on or about June 14, 2006, the date that plaintiffs were first made aware that defendant, UT Health Center was involved in the care, treatment and injury resulting in the death of Theresa Gutierrez, Unaware of UT Health Center’s involvement, plaintiffs had no reason to believe that they could state a claim against UT Health Center until such fact was disclosed by Dr. Christiane Vogt-Harenkamp’s attorney of record. Dr. Christiane Vogt- Harenkamp and UT Health Center have a duty to disclose the mechanism of injury resulting in death and the identity of the party responsible for the care and treatment of the plaintiffs’ decedent. Concealment amounts to a constitutional violation in depriving the plaintiffs their protected right of access to the courts and redress of grievances. Even after suit was filed, the deception continued with UT Health Center’s acquiescence. Attached as “Exhibit A” and incorporated as if fully set out, is Dr. Christiane Vogt-Harenkamp’s response to requests for disclosure. In response to “b,” “the name, address, and telephone number of any potential parties,” Dr. Christiane Vogt-Harenkamp responded, “Defendant is unaware of any potential parties at this time.” Defendant should be estopped from asserting limitations as a defense. 10. Third-Party Fraudulent Concealment Plaintiffs adopt and incorporate the allegations set out in paragraph no. 7 and 9. In addition to defendant and Dr. Christiane Vogt-Harenkamp, Memorial Hermann Hospital System also had a duty to disclose the mechanism of injury resulting in death and the identity of the party responsible for the care and treatment of the plaintiffs’ decedent. Memorial Hermann Hospital System failed to disclose UT Health Center’s involvement in plaintiffs’ decedent’s care to the detriment of the plaintiffs. Defendant should be estopped from asserting limitations as a defense. 10, Equitable Tolling of Limitations Plaintiffs adopt and incorporate the allegations set out in paragraph nos. 7, 8, 9 and 10, Defendant should be equitably estopped from asserting limitations as a defense. WHEREFORE, plaintiffs request that on final trial the plaintiffs have judgment against the defendant for a sum within the jurisdictional limits of the court, prejudgment and post- judgment interest as provided by law, costs of suit, and such other and further relief to which the plaintiffs may be justly entitled. Respectfully submitted, MOSS LAW OFFICE 5350 S. Staples, Suite 209 Corpus Christi, Texas 78411 (361) 992-8999 Telephone (361) 992-8373 Telecopier By: Abraham Moss State Bar No. 14581700 Fritz Barnett BARNETT & CRADDOCK, L.L.P. 440 Louisiana, Suite 1400 Houston, Texas 77002 (713) 425-5300 Telephone (713) 425-5301 Telecopier ATTORNEYS FOR PLAINTIFFS —- ee Re Cc RVIC) I hereby certify that a true and correct copy of the above and foregoing was served upon all counsel of record, to wit: Jason Warner Telecopied: # 512-463-2224 Assistant Attorney General Tort Litigation Division P. O. Box 12548 Capitol Station Austin, Texas 78711-2548 by certified mail, return receipt requested, facsimile transmission, and/or hand delivery pursuant to Rules 21 and 21(a), Tex. R. Civ. P. on this the 16" day of May 2007. Abraham Moss