Keene & Seibert’s attorneys maintain a rigorous schedule of professional outreach as sought-after educational resources for the healthcare industry.

Events

Nov 15, 2016 – Med Mal Seminar on Damage Caps

Mark A. Keene was honored to present a CLE-approved seminar to the Austin Bar Association’s Health Law Section. The presentation addressed Damage Caps in Medical Malpractice Cases and the power point slide show is available on the Firm’s home page, and upon request.

Medical Malpractice Presentation

News

Federal Court of Appeals Reverses Jury Verdict in Closely-Watched Employment Case

In a closely-watched appeal, the 5th Circuit Court of Appeals reversed a jury verdict, and rendered judgment for the Firm’s client in aminimum wage/overtime claim brought against the defendant/franchisor by an employee of an independently-owned and operated franchisee. In Orozco v. Plackis, the Court of Appeals held that there was insufficient evidence to establish that the franchisor was the “employer” of the franchisee’s employees under the “economic reality test” utilized to make that determination under the Fair Labor Standards Act. Because franchisors across the country are facing similar claims, and further because the 5th Circuit’s decisions on employment law are cited nationwide, the case garnered national scrutiny. The appeal included briefs filed by ten (10) amici curiae (friends of the court), including briefs filed by the National and Texas Restaurant Associations supporting the franchisor, and the U.S. Department of Labor supporting the plaintiff worker. Mark Keene successfully represented the franchisor in this appeal, obtaining a unanimous decision from the 5th Circuit that reversed the jury’s verdict and rendered a take-nothing judgment for the Firm’s client. You can listen to the oral argument above.

Texas Justices Find For Doctor In Child’s Snake Bite Care

By Collin Krabbe

Law360 (January 16, 2024, 7:07 PM EST) — A Texas doctor isn’t liable for her treatment of a child’s rattlesnake bite, with the state Supreme Court concluding a four-hour delay in administering antivenom fell squarely within the hospital’s treatment guidelines for snakebites.

Chief Justice Nathan Hecht ruled in an opinion delivered Friday that the evidence showed Dr. Kristy Marsillo knew the risks of choosing when to administer CroFab antivenom to the child, choosing to follow the guidelines — rather than merely being indifferent to the risks. The risks of treatment,
as described in the opinion, include possible impairment in the blood’s ability to clot.

The opinion said 13-year-old Raynee Dunnick was bitten by a rattlesnake while walking her dog in her front yard. She was taken to Seton Medical Center Hays in Kyle, where she was seen by Marsillo before being transferred to a children’s hospital. The child survived the encounter.

Her parents, Robin and Dana Dunnick, sued Marsillo, saying the doctor’s failure to depart from the snakebite guidelines and administer CroFab more immediately amounted to negligence resulting in pain, suffering, impairment and disfigurement. They sought over $1 million in damages.

The Supreme Court, however, said the family had to offer “legally sufficient evidence” that the doctor’s decision to follow the guidelines “objectively posed” an extreme degree of risk to the child, and that Marsillo was “subjectively aware” of the risk but proceeded with indifference to her safety.

An affidavit from expert Dr. Benjamin Abo, a toxinologist who specializes in snake envenomation, wasn’t enough to sway the Supreme Court. And that affidavit was the “only evidence on breach,” according to the opinion.

The affidavit of that expert, Abo, “does not explain how he arrived at the opinion that the standard of care is always to administer antivenom immediately upon the first sign of envenomation or why the risks of antivenom administration should not be considered, as required by the guidelines,” according to the Supreme Court opinion.

Further, the opinion adds that the affidavit references a “unified treatment algorithm” for managing such snakebites in the U.S. But the affidavit does not explain what the algorithm is, why an algorithm is necessary if the standard of care is as straightforward as the affidavit claims, or whether the algorithm differs from the guidelines adopted by Seton Medical Center Hays.

“Because the affidavit fails to address the guidelines, it also does not explain how Marsillo’s following them in this case objectively posed an extreme degree of risk to Raynee instead of avoiding the competing danger of side effects from antivenom administration,” Justice Hecht’s opinion said.

In doing so, the justice said, the affidavit only has “conclusory assertions,” not considered to be evidence, failing to raise an issue of fact of either prong for gross negligence. Those two prongs are an objectively extreme degree of risk plus a person’s having a subjective awareness of the risk involved but proceeding with “conscious indifference” to the rights, safety or welfare of others, as told in the opinion.
Counsel for the family could not be immediately reached for comment on the case.

The Texas Supreme Court Ruled in Favor of Emergency Room Doctor

The Texas Supreme Court ruled in favor of emergency room physician Dr. Kristy Marsillo on January 11, concluding the plaintiff produced no evidence that her treatment of a snakebite was willfully and wantonly negligent, the required standard of proof in an emergency care case.

Thirteen-year-old Raynee Dunnick presented to Seton Medical Center Hays in Kyle with a rattlesnake bite on her left foot. Dr. Marsillo immediately implemented the hospital’s snakebite treatment plan, monitored the patient’s vital signs, repeatedly ordered blood work, and re-examined the severity of the injury to determine whether and when to administer antivenom. After Raynee’s condition gradually worsened over the next few hours, Dr. Marsillo infused her with antivenom. Raynee’s condition improved after the infusion was instigated and she was released from the hospital on crutches the following day.

The Dunnick’s sued, alleging Dr. Marsillo should have started the antivenom infusion sooner, and that her failure to do so caused further complications, including permanent injury, disfigurement, and ongoing pain and suffering. The family sought one million dollars in damages.

Medical literature states that the antivenom administered to Raynee Dunnick is effective within six hours of a snake bite. However, the court noted that “giving the antivenom is not a risk-free proposition.” Many patients develop severe adverse reactions to the antivenom, which the manufacturer states should be administered when called for and not otherwise.

Dr. Marsillo marked the progression of swelling to confirm that Raynee Dunnick needed the antivenom and had not received a dry or nonvenomous bite.

The trial judge initially dismissed Plaintiff’s case and ruled she failed to introduce any credible evidence of willful and wanton negligence, the required threshold in an emergency care case. The Court of Appeals overruled the trial judge and reinstated Plaintiff ’s lawsuit after proclaming there was a “possibility” that Dr. Marsillo knowingly proceeded with a treatment plan that put the patient in danger. Dr. Marsillo then appealed to the Texas Supreme Court.

TAPA filed an amicus brief with the Texas Supreme Court and asked that the trial court’s dismissal of Plaintiff ’s case be re-instated. The Texas Hospital Association, Texas Medical Association, and the Texas Osteopathic Medical Association all joined in TAPA’s amicus brief. The Texas College of Emergency Physicians also submitted an amicus brief on Dr. Marsillo’s behalf.