State Appellate Court Finds That Consulting Internist Not Liable for Choosing Not to Speak Directly to Patient’s Treating Neurosurgeon

A Texas Appellate Court has held that a hospital internist was not liable for medical negligence. The case arises out of his choosing not to timely diagnose a post-surgical patient’s condition and then consult with the patient’s treating neurosurgeon.

Charles Collins underwent neck surgery performed by neurosurgeon Dr. Shanker Sundraini. The afternoon of the surgery, Collins developed worrisome symptoms, including numbness and weakness in his extremities.

Hospital staff called Dr. Sundraini; nurses noted the following morning that Collins had movement in his extremities but could not grip.

Dr. Cesar Vivanco, the hospital internist Dr. Sundraini had consulted about Collins’s preexisting hypertension and diabetes, came to Collins’s bedside the day after the surgery.

Dr. Vivanco later told nurse Diana Montanez that he needed to speak to Dr. Sundraini and wanted to know whether Dr. Sundraini would proceed with a CT scan of Collins’s neck.

The two made several calls to Dr. Sundraini, who did not immediately respond. Dr. Vivanco then left to attend to other patients but told Montanez to tell Dr. Sundraini about Collins’s weakness, numbness and tingling. Dr. Vivanco’s notes were put into the hospital’s computerized records.

Dr. Sundraini subsequently called and spoke to Montanez, who notified the doctor of Collins’s symptoms and Dr. Vivanco’s recommendation of a CT scan.

Dr. Sundraini allegedly said that he would be coming to the hospital to assess Collins; however, Dr. Sundraini did not come to the hospital to see Collins that day. The next day, Collins underwent an MRI, which led to a second surgery. The MRI and surgery revealed the presence of a hematoma compressing Collins’s cervical spine. In spite of the surgery, Collins now suffers from quadriparesis.

Collins’s wife sued Dr. Vivanco among others, alleging that they breached the standard of care by not conferring directly with Dr. Sundraini. The jury found no liability, and the trial court entered a “take-nothing judgment” on the jury’s verdict. This is a verdict in favor of the defendants.

Affirming, the appellate court rejected the plaintiff’s contention that Dr. Vivanco was liable for the breach of a nondelegable duty. No statute or case imposes a consulting physician a nondelegable duty to provide patient information to an attending physician who had a direct conversation, the appellate court stated. It further stated that it declined to create such a duty in this setting.

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

Accordingly, the appeals panel concluded that the trial court’s judgment was proper and affirmed that finding in favor of the defendants.

Collins v. Vivanco, 2020 WL 2079218 (Tex. App. April 30, 2020).

Kreisman Law Offices has been handling medical malpractice lawsuits, Illinois appellate cases, wrongful death cases, physician negligence cases, birth trauma injury lawsuits and hospital negligence cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Palatine, Barrington Hills, Algonquin, Huntley, Village of Lakewood, Elburn, Elgin, Bloomingdale, Lake Zurich, Roselle, Oak Park, River Forest, Westchester, Oak Brook, Westmont, Hickory Hills, LaGrange, Lyons, Burbank, Oak Lawn, Palos Heights, Dixmoor, Harvey, Markham, Homewood, Country Club Hills, Olympia Fields, Chicago Heights, University Park, Beecher, Wilmette, Highwood, Schaumburg, Northbrook, Wheeling, Glencoe, Chicago (Ravenswood, St. Ben’s, North Center, Avondale, Lakeview, Sheridan Park, Andersonville, Edgewater Beach, Arcadia Terrace, Peterson Park, Little India, Pulaski Park, Sauganash, North Edgebrook, Wildwood, Norwood Park East, Union Ridge, Oriole Park, Martin Luther, Belmont Terrace, Big Oaks, Palmer Square, West Town, Fulton Market, Printer’s Row, Motor Row District, Ickes Prairie Homes, Aldine Square, Oakland, Indian Village, Washington Park, Jackson Park, Jackson Park Highlands), Aurora, Burbank, Bridgeview, Hickory Hills, Lemont, Palos Park, Crestwood and Oak Forest, Ill.

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