Gallardo v. Ugarte

In Gallardo v. Ugarte, 145 S.W.3d 272 (Tex. App.--El Paso 2004, pet. denied), a survival and wrongful death action, the report identifies the specific injury and cause of death. The portion of the Gallardo report on which Constancio relies discusses decubitus ulcers, which were not the cause of death, but an injury for which the plaintiff sought pain and suffering damages in the survival action. See id. at 278 n.4, 279-80. The Gallardo report provides ample statements on the cause of this injury. See id. at 279-80. The Gallardo report goes on to address causation with regard to the decedent's congestive heart failure, which is identified as the cause of death. See id. at 280. In Gallardo v. Ugarte, the plaintiff's expert not only faulted the nurse for failing to monitor the patient every two hours to ensure that he changed his position in the bed (to prevent decubitus ulcers), but also indicated additional steps that could be taken to prevent the formation of ulcers including "padding his bed and applying Granulex spray." See Gallardo, 145 S.W.3d at 279. As the Court explained, the report "adequately conveyed the idea that failure to take the proper steps caused the decubitus or caused it to get worse." Id. at 280. The estate of a deceased nursing home patient sued the nursing home, alleging that it was negligent in not properly monitoring and treating a decubitus ulcer which eventually led to the death of the patient. Id. at 274. The expert report offered by the plaintiff in Gallardo concluded that: More frequent checks by the CNA to insure he maintained a position change every two hours, padding his bed in such a manner as to maintain him in position and Granulex spray to pressure points are but a few of the things that . . . could have been done to prevent as well as treat the decubitus. There is no evidence in the record that Mr. Gallardo received any of these preventive measures. . . . . Mr. Gallardo should have been placed on oxygen and a call to 911 should precede the call to Dr. Ugarte. Please note, Dr. Ugarte does not evaluate this incident or address it in his Progress Notes. . . . . Dr. Ugarte failed to meet the standard of care to accurately assess and diagnose Mr. Gallardo, to prescribe medications consistent with Mr. Gallardo's diagnoses and current prescribing standards, to prescribe an accurate dose of medication to treat the condition for which it was prescribed, to prescribe an appropriate medication, to provide treatment consistent with Mr. Gallardo's diagnosises and medical conditions and to follow established protocols and guidelines of nursing home and the State of Texas. . . Gallardo, 145 S.W.3d at 279.