Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`PLAINTIFF
`
`
`
`
`
`§
`JESSICA ARGUELLO
`§
`
`§
`
`§
`
`§
`
`§
`v.
`§
`
`§
`
`§
`HCA HEALTHCARE, INC.
`§
`DOING BUSINESS AS
`§
`ST. DAVID’S HEALTHCARE,
`§
`SOUTH AUSTIN HOSPITAL, AND
`SOUTH AUSTIN SURGERY CENTER, LTD §
`
`
`§
`
`
`§
`
`DEFENDANTS
`§
`
`
`
`CIVIL ACTION NO. _____
`
`
`JURY TRIAL DEMANDED
`
`
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`COMES NOW, Jessica Arguello, Plaintiff herein, and files Plaintiff’s Original
`
`Complaint against Defendant, HCA Healthcare, Inc., (hereinafter referred to as “HCA”),
`
`and alleges as follows:
`
`INTRODUCTION
`
`
`
`This is a medication error healthcare liability claim for money damages, arising
`
`from Defendant’s employees’ negligence in providing a surgeon with formalin in a
`
`syringe to inject into Plaintiff’s right hand instead of a syringe filled with a local
`
`anesthetic of 20 ml of 1% Lidocaine plain with Epinephrine, 0.25% Marcaine plain
`
`mixed in a 1:1 mixture the surgeon believed he was injecting. The negligence resulted in
`
`formalin being injected into Plaintiff’s dominant right hand soft tissue causing a chemical
`
`burn resulting in severe and permanently painful, impairing and disfiguring injury to
`
`Arguello Original Complaint
`
`
`1:21-cv-889
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`PLAINTIFF
`
`
`
`
`
`§
`JESSICA ARGUELLO
`§
`
`§
`
`§
`
`§
`
`§
`v.
`§
`
`§
`
`§
`HCA HEALTHCARE, INC.
`§
`DOING BUSINESS AS
`§
`ST. DAVID’S HEALTHCARE,
`§
`SOUTH AUSTIN HOSPITAL, AND
`SOUTH AUSTIN SURGERY CENTER, LTD §
`
`
`§
`
`
`§
`
`DEFENDANTS
`§
`
`
`
`CIVIL ACTION NO. _____
`
`
`JURY TRIAL DEMANDED
`
`
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`COMES NOW, Jessica Arguello, Plaintiff herein, and files Plaintiff’s Original
`
`Complaint against Defendant, HCA Healthcare, Inc., (hereinafter referred to as “HCA”),
`
`and alleges as follows:
`
`INTRODUCTION
`
`
`
`This is a medication error healthcare liability claim for money damages, arising
`
`from Defendant’s employees’ negligence in providing a surgeon with formalin in a
`
`syringe to inject into Plaintiff’s right hand instead of a syringe filled with a local
`
`anesthetic of 20 ml of 1% Lidocaine plain with Epinephrine, 0.25% Marcaine plain
`
`mixed in a 1:1 mixture the surgeon believed he was injecting. The negligence resulted in
`
`formalin being injected into Plaintiff’s dominant right hand soft tissue causing a chemical
`
`burn resulting in severe and permanently painful, impairing and disfiguring injury to
`
`Arguello Original Complaint
`
`
`1:21-cv-889
`
`
`
`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 2 of 13
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`Plaintiff’s dominant right hand. Plaintiff has undergone four (4) surgeries to repair the
`
`damage without regaining the full use or range of motion of her dominant right hand.
`
`A. PARTIES
`
`1.
`
`2.
`
`Plaintiff is Jessica Arguello who is a citizen of the State of Texas.
`
`Defendant HCA Healthcare, Inc., doing business as St. David’s Healthcare, South
`
`Austin Hospital and South Austin Surgery Center, LTD is a corporation incorporated in
`
`the State of Tennessee and it may be served with process herein by serving its registered
`
`agent, CT Corporation, 1999 Bryan Street, Ste. 900, Dallas, Texas 75201-3136.
`
`3.
`
`Defendant HCA Healthcare, Inc. is one of the leading health care services
`
`companies in the United States. As of December 31, 2020, HCA operated 185 hospitals,
`
`comprised of 178 general, acute care hospitals; five psychiatric hospitals; and two
`
`rehabilitation hospitals. In addition, HCA operated 121 freestanding surgery centers and
`
`21 freestanding endoscopy centers. HCA’s facilities are in 20 states and England.
`
`4.
`
`HCA provides a comprehensive array of health care services. HCA’s acute care
`
`hospitals typically provide a full range of services to accommodate such medical
`
`specialties as internal medicine, general surgery, cardiology, oncology, neurosurgery,
`
`orthopedics, and obstetrics, as well as diagnostic and emergency services. Outpatient and
`
`ancillary health care services are provided by HCA’s general, acute care hospitals,
`
`freestanding surgery centers, freestanding emergency care facilities, urgent care facilities,
`
`walk-in clinics, diagnostic centers, and rehabilitation facilities. HCA’s psychiatric
`
`hospitals provide a full range of mental health care services through inpatient, partial
`
`hospitalization, and outpatient settings.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 3 of 13
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`5.
`
`HCA owns, manages, or operates hospitals, freestanding surgery centers,
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`freestanding emergency care facilities, urgent care facilities, walk-in clinics, diagnostic,
`
`and
`
`imaging centers,
`
`radiation and oncology
`
`therapy centers, comprehensive
`
`rehabilitation and physical therapy centers, physician practices and various other
`
`facilities. As of December 31, 2020, HCA owned and operated 178 general, acute care
`
`hospitals with 48,492 licensed beds. Most of HCA’s general, acute care hospitals provide
`
`medical and surgical services, including impatient care, intensive care, cardiac care,
`
`diagnostic care, diagnostic services, and emergency services. The general, acute care
`
`hospitals also provide outpatient services such as outpatient surgery, laboratory,
`
`radiology, respiratory therapy, cardiology, and physical therapy. As of December 31,
`
`2020, HCA operated five psychiatric hospitals with 593 licensed beds, HCA’s psychiatric
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`hospitals provide therapeutic programs, including child, adolescent and adult psychiatric
`
`care and adolescent and adult alcohol and drug abuse treatment and counseling.
`
`6.
`
`HCA also operates outpatient health care facilities, which include freestanding
`
`ambulatory surgery centers (“ASC’s”), freestanding emergency care facilities, urgent
`
`facilities, walk-in clinics, diagnostic and imaging centers, comprehensive rehabilitation
`
`and physical therapy centers, radiation and oncology therapy centers, physician practices
`
`and various other facilities. These outpatient services are an integral component of
`
`HCA’s strategy to develop comprehensive health care networks in select communities.
`
`7.
`
`HCA’s workforce is comprised of approximately 275,000 employees (as of
`
`December 31, 2020), including approximately 80,000 part-time employees.
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`
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 4 of 13
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`B. JURISDICTION
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`8.
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`The court has jurisdiction over the lawsuit under 28 U.S.C. §1332(a)(1) because
`
`Plaintiff and Defendant are citizens of different states, and the amount in controversy
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`exceeds $75,000.00, excluding interest and costs.
`
`C. DEMAND FOR JURY TRIAL
`
`9.
`
`Plaintiff asserts her rights under the Seventh Amendment to the U.S. Constitution
`
`and demands, in accordance with the Federal Rule of Civil Procedure 38, a trial by jury
`
`on all issues.
`
`D. CONDITIONS PRECEDENT
`
`10.
`
`Federal courts sitting in diversity cases must apply state substantive law and
`
`federal procedural law.
`
`11.
`
`Plaintiff has met all conditions precedent applicable to this matter under state
`
`substantive law and federal procedural law. Plaintiff complied with Tex. Civ. Prac. &
`
`Rem. Code §74.051 and §74.052 by serving the statutory required notice on St. David’s
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`Healthcare by certified mail, return receipt requested with the required Authorization for
`
`Release of Protected Health Information on July 20, 2021 as required by Tex. Civ. Prac.
`
`& Rem. Code §74.052. More than 60 days have passed since Defendant received notice
`
`of this health care liability claim.
`
`12.
`
`Discovery is procedural and controlled under the Federal Rules of Civil
`
`Procedure. Rule 26 governs a party’s duties to disclose experts, the timing of the
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`disclosure and the content. Fed. R. Civ. P. 26(a)(2). Since Tex. Civ. Prac. & Rem. Code
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`§74.351 conflicts with the Federal Rules, the Fifth Circuit has determined Rule 26
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`controls over §74.351. See Passmore v. Baylor Health Care Syst., 823 F.3d 284 (5th Cir.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 5 of 13
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`2016), reh’g en banc denied. Since the Fifth Circuit has ruled that §74.351 conflicts with
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`the Federal Rules and does not apply in federal court, Plaintiff has not filed her expert
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`report(s) with this complaint and discovery should commence after Defendant answers
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`pursuant to the federal and local rules.
`
`E. FACTS
`
`13.
`
`At all times material hereto, HCA owned, operated, and managed a surgery center
`
`in Travis County, Texas known as South Austin Surgery Center.
`
`14.
`
`HCA is a healthcare entity. HCA is vicariously liable for the negligence of its
`
`employees, agents and/or servants including, but not limited to, all nurses and staff who
`
`provided surgical nursing care to Plaintiff on January 9, 2020, pursuant to the legal theory
`
`of respondent superior.
`
`15.
`
`At all times material hereto, certified surgical technologist/scrub technicians, and
`
`operating room circulating registered nurses who were employees of HCA, while acting
`
`within the course and scope of such employment, provided professional certified surgical
`
`technologist/scrub technicians and operating room circulating nursing care to Plaintiff.
`
`16.
`
`At all times material hereto, HCA employed M. Mayfield, certified surgical
`
`technologist/scrub technician in its surgery center.
`
`17.
`
`At all times material hereto, M. Mayfield was an agent, servant, and/or employee
`
`of HCA was acting within the course and scope of such agency, service and/or
`
`employment on January 9, 2020, the date made the basis of this lawsuit.
`
`18.
`
`At all times material hereto, HCA employed S. Thompson, R.N. as an operating
`
`room circulating nurse in its surgery center.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 6 of 13
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`19.
`
`At all times material hereto, S. Thompson, R.N. was an agent, servant, or
`
`employee of HCA and was acting within the course and scope of such agency, service
`
`and/or employment on January 9, 2020, the date made the basis of this lawsuit.
`
`20.
`
`On or about January 9, 2020, HCA admitted Plaintiff into its surgery center for
`
`the purpose of surgeon Jeffrey T. Jobe, M.D., anesthesiologist Katherine Kohls, M.D., L.
`
`Edmond, C.R.N.A., S. Thompson, operating room circulating R.N., and M. Mayfield
`
`certified surgical
`
`technologist/scrub
`
`technician performing a
`
`right hand
`
`first
`
`metacarpalphalangeal (MCP) arthrodesis (fusion) and neuroma excision on Plaintiff’s
`
`right hand. See Exhibit A – Operative Report
`
`21.
`
`At the conclusion of Plaintiff’s surgery, Dr. Jobe copiously irrigated the incision
`
`with an irrigant (normal saline used per the Intraoperative Record).
`
`22.
`
`Dr. Jobe was then given a syringe by M. Mayfield (certified surgical
`
`technologist/scrub tech) of what Dr. Jobe believed to be a syringe containing a local
`
`anesthetic of 20 ml of 1% Lidocaine plain with Epinephrine, 0.25% Marcaine plain
`
`mixed in a 1:1 mixture. Instead, Dr. Jobe was negligently given a syringe of Formalin.
`
`See Exhibit B - Operative Report Addendum “Complication.”
`
`23.
`
`The syringe of Formalin was prepared by either S. Thompson, R.N. (operating
`
`room circulating nurse) or M. Mayfield (certified surgical technologist/scrub tech).
`
`24.
`
`Formalin is a colorless solution of formaldehyde in water. It is used as a
`
`preservative for biological specimens.
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`25.
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`Formalin should never be placed in the sterile field on the back table in the
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`operating room.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 7 of 13
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`26.
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`The injection of Formalin into Ms. Arguello’s right hand soft tissue caused a
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`chemical burn to Ms. Arguello’s right hand.
`
`27. When Ms. Arguello came out of anesthesia in the recovery room she was
`
`complaining of significant pain. Anesthesia provided a nerve block for the uncontrolled
`
`pain. The record indicates it was discovered that a specimen cup had been placed on the
`
`back table of the surgical field mislabeled and was Formalin. See Exhibit B - Operative
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`Report Addendum “Complication.”
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`28. When the Formalin was injected into Plaintiff’s dominant right hand it caused
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`instant cell death in her nerves, tissue, and tendons. Poison control was immediately
`
`contacted. Dr. Jobe ordered Plaintiff to be transferred to a hospital for emergency care.
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`By the time Plaintiff reached the emergency room, the tissue was already necrotic, and
`
`she was in agony. Sadly, this was only the beginning of a long, painful nightmare
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`Plaintiff is still living today.
`
`29.
`
`Plaintiff has endured four (4) additional surgeries because of the predictable and
`
`preventable medication error to save her hand, reconstruct the tissue, and hopefully
`
`regain some range of motion and use in her right hand. Despite all these efforts, her hand
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 8 of 13
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`is still permanently deformed, she lacks feeling in her thumb and index finger, and she
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`has permanent loss of strength and mobility in her dominant right hand. The photographs
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`below are a sample depicting the horrible pain, impairment, and disfigurement Plaintiff
`
`has suffered and will suffer in the future.
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`30.
`
`HCA’s negligence was a proximate cause of Plaintiff’s injuries and damages.
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`F. CAUSES OF ACTION
`
`31.
`
`Plaintiff incorporates herein each allegation in paragraphs 1 through 30 above in
`
`support of her causes of action against HCA.
`
`32.
`
`HCA’s agents, servants, and/or employees namely M. Mayfield, C.S.T. and S.
`
`Thompson, R.N. negligently filled the syringe given to Dr. Jobe with Formalin instead of
`
`a local anesthetic of 20 ml of 1% Lidocaine with Epinephrine, 0.25% Marcaine plain
`
`mixed in a 1:1 mixture at the end of the surgical procedure on January 9, 2020, and that
`
`negligence was a proximate cause of the chemical burn to Plaintiff’s right hand.
`
`33.
`
`HCA’s agents, servants, and/or employees namely M. Mayfield, C.S.T. and S.
`
`Thompson, R.N. owed a duty to Plaintiff to follow the standard of care for safe
`
`medication management in the perioperative area and prevent predictable and preventable
`
`medication errors. The standard of care to prevent mediation errors requires:
`
`a. In perioperative and other procedural settings both on and off the sterile field,
`
`label medications and solutions that are not immediately administered. This
`
`applies even if only one medication is being used. An immediately administered
`
`medication is one that an authorized staff member prepares or obtains, takes
`
`directly to a patient, and administers to that patient without any break in the
`
`process.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 9 of 13
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`
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`b. In perioperative and other procedural settings both on and off the sterile field,
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`labeling occurs when any medication or solution is transferred from the original
`
`packaging to another container.
`
`c. In perioperative and other procedural settings both on and off the sterile field,
`
`medication or solution labels include the following:
`
`• Medication or solution name
`
`• Strength
`
`• Amount of medication or solution containing medication (if not
`
`apparent from the container)
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`• Dilute in name and volume (if not apparent from the container)
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`• Expiration date when not used within 24 hours
`
`• Expiration time when expiration occurs in less than 24 hours
`
`
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`The date and time or not necessary for short procedures as defined by
`
`the hospital
`
`
`
`d. Verify all medications or solution labels both verbally and visually.
`
`Verification is done by two individuals (CST/scrub technician and operating room
`
`circulating nurse) qualified to participate in the procedure whenever the person
`
`preparing the medication or solution is not the person who will be administering
`
`it.
`
`
`
`e. Label each medication or solution as soon as it is prepared unless it is
`
`immediately administered. Note: an immediately administered medication is one
`
`that an authorized staff member prepares or obtains, takes directly to a patient,
`
`and administers to that patient without any break in the process.
`
`
`
`f. Immediately discard any medication or solution found unlabeled.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 10 of 13
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`g. Remove all Labeled containers on the sterile field and discard their contents at
`
`the conclusion of the procedure. Note this does not apply to multi use vials that
`
`are handled according to infection control practices.
`
`
`
`h. All medications and solutions both on and off the sterile field and their labels
`
`are reviewed by entering and exiting staff responsible for the management of
`
`medications.
`
`
`
`34.
`
`HCA’s agents, servants, and/or employees namely M. Mayfield, C.S.T. and S.
`
`Thompson, R.N. breached the duty owed to Plaintiff to follow the standard of care for
`
`safe medication management in the perioperative area as set forth in paragraph 33 by:
`
`a. Failing to verify the medication required by Dr. Jobe of a local anesthetic of 20
`
`ml of 1% Lidocaine with Epinephrine, 0.25% Marcaine plain mixed in a 1:1
`
`mixture verbally and visually when pouring the two separate vials of Lidocaine
`
`with Epinephrine and Marcaine into a cup together on the sterile field.
`
`
`
`b. Failing to properly label the cup containing the local anesthetic of 20 ml of 1%
`
`Lidocaine with Epinephrine, 0.25% Marcaine plain mixed in a 1:1 mixture
`
`(medication).
`
`
`
`c. Failing to label and verify the syringe used to draw the local anesthetic of 20 ml
`
`of 1% Lidocaine with Epinephrine, 0.25% Marcaine plain mixed in a 1:1 mixture
`
`was from the correctly labeled cup containing the medication mixture.
`
`
`
`d. Failing to label Formalin in a cup in the sterile field when the Formalin was
`
`transferred from the original packaging to a cup in the sterile field.
`
`
`
`
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`e. Failing to verbally and visually confirm and identify what medications were
`
`being transferred from the operating room circulating nurse – S. Thompson to the
`
`CST/scrub technician - M. Mayfield on to the sterile field.
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 11 of 13
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`
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`f. Failing to properly label the medications in the cups on the sterile field.
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`
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`35.
`
`HCA’s agents, servants, and/or employees namely M. Mayfield, C.S.T.’s and S.
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`Thompson, R.N.’s breach of the duty owed to Plaintiff to follow the standard of care for
`
`safe medication management in the perioperative area proximately caused Plaintiff to
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`suffer chemical burns to her dominant right hand and undergo four (4) surgeries as of the
`
`date of filing this Complaint.
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`G. DAMAGES
`
`36.
`
`Defendant’s negligence proximately caused Plaintiff to suffer the following
`
`damages:
`
`a.
`
`b.
`
`Medical expenses in the past;
`
`Medical expenses that, in reasonable probability, she will suffer in the
`
`future;
`
`c.
`
`Loss of earnings and/or earning capacity in the past;
`
`d.
`
`Loss of earnings and/or earning capacity that, in reasonable probability,
`
`she will incur in the future;
`
`Physical impairment in the past;
`
`Physical impairment that, in reasonable probability, she will suffer in the
`
`future;
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`Pain and suffering in the past;
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`Pain and suffering that, in reasonable probability, she will suffer in the
`
`e.
`
`f.
`
`g.
`
`h.
`
`future;
`
`i.
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`Mental anguish in the past;
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 12 of 13
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`j.
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`Mental anguish that, in reasonable probability, she will suffer in the
`
`future;
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`Physical disfigurement in the past;
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`Physical disfigurement that, in reasonable probability, she will suffer in
`
`k.
`
`l.
`
`the future; and
`
`m.
`
`Consequential damages.
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`PRAYER
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`37. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests after a
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`jury trial herein, Plaintiff have and recover against Defendant the following relief:
`
`a.
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`Judgment against Defendant for all Plaintiff’s actual damages as determined
`
`by the evidence;
`
`b.
`
`c.
`
`d.
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`Pre-judgment and post-judgment interest as provided by law;
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`Costs of court as provided by law; and
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`Such other relief to which Complainant may be entitled.
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`Respectfully submitted,
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`ERSKINE & BLACKBURN, P.L.L.C.
`
`By: /s/ Blake C. Erskine, Jr.
`
`Blake C. Erskine, Jr.
`Federal Bar No. 27042
`State Bar of Texas No. 00786383
`Email: berskine@erskine-blackburn.com
`
`Mark B. Blackburn
`Federal Bar No. 14680
`State Bar of Texas No. 02388990
`Email: mblackburn@erskine-blackburn.com
`
`6618 Sitio del Rio Blvd.
`Building C-101
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`Arguello Original Complaint
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`Case 1:21-cv-00889-LY Document 1 Filed 10/04/21 Page 13 of 13
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`Austin, Texas 78730
`Telephone (512) 684-8900
`Facsimile (512) 684-8920
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`ATTORNEYS FOR COMPLAINANT
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`
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`Arguello Original Complaint
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