in Re: Keith Russell Judd ( 2012 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-12-00011-CV

                                                ______________________________

                                                  IN RE:  KEITH RUSSELL JUDD

                                                     Original Mandamus Proceeding

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            Keith Russell Judd has petitioned this Court for mandamus relief. Judd would have us compel the trial court to issue a default judgment on Judd’s petition for divorce.  We deny Judd’s requested relief.

            Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law.  Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding); see In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).  It is the relator’s burden to provide this Court with a sufficient record to establish the right to mandamus relief.  Walker, 827 S.W.2d at 837; In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding); see Tex. R. App. P. 52.3.

            Judd has provided this Court with no documents supporting his request.  While he has attached a noncertified copy of the officer’s return indicating service of process was delivered to the respondent, he has neither provided a certified copy of the motion for default judgment Judd claims to have filed in the trial court, nor of any other filings in the trial court.^[1] 

            We find Judd has failed to demonstrate he is entitled to the extraordinary remedy of mandamus relief.  We, therefore, deny his petition.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          January 23, 2012

Date Decided:             January 24, 2012

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^[1]This Court denied a similar request for mandamus relief requested by Judd last year.  In re Judd, 06-11-00035-CV, 2011 Tex. App. LEXIS 2501 (Tex. App.—Texarkana Apr. 5, 2011, orig. proceeding) (mem. op.).

performing CPR on the child and thus asserted the criminal law's equivalent of former Section 74.002: "It is a defense to prosecution under this section that the act or omission consisted of . . . emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts." See Tex. Pen. Code Ann. § 22.04(k)(2) (Vernon Supp. 2005) (emphasis added) (formerly Tex. Pen. Code Ann. § 22.04(k)(1)(B)). Shaw pointed to Moore to support her argument that she fell within the definition of "a person not licensed in the healing arts." Shaw, 181 S.W.3d 450. Careful to point out that Moore "is not in conflict with this decision," the Waco court rejected Shaw's argument, concluding that Shaw was, in fact, licensed in the healing arts and could not use Section 22.04(k)'s provisions. Id. The court explained that "a licensed physician assistant . . . is engaged in the practice of medicine under supervision of a physician and, unlike an emergency medical technician, is a healthcare provider." Id. (citing Tex. Occ. Code Ann. §§ 152.003(a)(1)(J), 204.204 (Vernon 2004)) (emphasis added). The court also pointed to the distinctions between the job duties of EMS personnel and a physician's assistant to further distinguish the facts of Moore. Shaw, 181 S.W.3d 450.

            We conclude that Young and Greene were "not licensed in the healing arts" and, thus, fell within the protection of the Good Samaritan provision. The next question is whether the summary judgment evidence raises a fact question as to whether their care of Smith was willfully or wantonly negligent.

(2)       The Evidence Conclusively Establishes that Defendants Did Not Violate the Good Samaritan Provision's Willful-or-Wanton-Negligence Standard

            In support of their motion for summary judgment, defendants submitted affidavits of Dunlap's experts and of both Young and Greene. Hess' deposition, in particular, leads to the conclusion that neither Young nor Greene acted with willful and wanton negligence.

            Though there have been few court opinions on this standard as it applies to the Good Samaritan laws, Wheeler directly addresses the issue in a summary judgment context. In Wheeler, the Corpus Christi court reversed and remanded a summary judgment granted in favor of the defendants, concluding there were fact issues concerning whether the defendants had acted with willful and wanton negligence. Wheeler explains the standard:

"Heedless and reckless disregard," sometimes termed "willful act or omission" or "willful and wanton disregard," means "that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it." See Burk Royalty Co. v. Walls, 616 S.W.2d 911, 916–20 (Tex. 1981). It is synonymous with "gross negligence." Id. at 920.

Wheeler, 866 S.W.2d at 50 n.25. The court pointed to a great deal of evidence in Wheeler that raised a fact issue regarding whether the EMS personnel acted with willful or wanton negligence in the stillbirth of an infant occurring during a ninety-mile transport of a mother in advanced labor. Among that evidence was the following:

The deposition of EMT Koehler who stated that (1) he believed Wheeler would deliver en route based on the increasing intensity and shorter spacing of her contractions; (2) he had the authority to refuse to transport her to John Sealy but did so anyway; (3) he knew how to maintain an airway for the baby but chose not to do so for fear of causing the mother to tear and bleed to death; (4) the EMTs had a limited amount of training in breech births; (5) there were other hospitals along their route to Galveston but they did not consider taking the patient to any of them.

The deposition of EMT Davis who stated (1) he was taught how to maintain an airway for the baby in a breech birth; (2) he was supposed to perform the procedure if he had a question about whether the baby was getting air; (3) he would consider the situation with Mrs. Wheeler a time when the maneuver was appropriate; (4) he realized that failure to perform the maneuver would result in the baby's oxygen deprivation and death; (5) he and Koehler discussed performing the procedure but he made no attempt to do so.

The deposition of Dr. Rodriguez who stated that (1) the action of EMT Davis in tearing the amniotic sac open was "completely wrong" and speeded up the delivery; (2) the proper procedure when the water breaks is to have the patient lie quietly and avoid rupturing the membranes; (3) in reasonable medical probability, had the EMTs followed the proper procedure, there would have been time for Life Flight to arrive and take Mrs. Wheeler to John Sealy; (4) as Mrs. Wheeler's labor became more intense, the EMTs should have stopped at one of the several other hospitals en route to have Mrs. Wheeler rechecked.

Id. at 50–51 (footnote omitted). This evidence was held sufficient to raise a fact question as to whether the EMS personnel in Wheeler acted with willful or wanton negligence. Having determined that the former Section 74.002 applies to the instant case, we must now measure the emergency care administered by Young and Greene in this case by the willful and wanton negligence standard.

            (a)       Failure to Stabilize an Airway Before Transport and Failure to Promptly Intubate  

            Hess stated that patients in respiratory distress "require[] rapid airway intervention" and should be administered "supplemental high oxygen." He added that such supplemental oxygen is administered through a nonrebreather mask. Young did exactly this and did so before transport.

            Hess also explained that "[a]ssisted respiration should be done for patients in respiratory failure" and that this is "usually done with a BVM." Young did just this.

            Hess goes on to explain that he thinks the BVM should have been used while Smith was in respiratory failure (before she went into arrest). He further notes that "definitely" the standard of care with respect to a patient in respiratory arrest would dictate use of a BVM. Again, this was done for Smith. At most, Hess stated that Young should have used a BVM a bit sooner than she did.

            Patients can be appropriately ventilated using a BVM. Hess goes on to explain that it can also adequately oxygenate the patient on a short-term basis "with appropriate usage." As Young explained, "You can have an open, patent airway which is able to receive oxygen . . . without intubation."

            Dunlap specifically alleged that Young and Greene failed to stabilize the airway before transport. According to Hess, however, this can be accomplished through use of a BVM. This testimony is hard to reconcile with Dunlap's allegations regarding failure to intubate. However, in a previous letter, he explained that endotracheal intubation is the "preferred method." Hess conceded there is no evidence here that Smith was not properly ventilated through use of the BVM. He did not state the same with respect to proper oxygenation since it requires adequate circulation.

            (b)       "Prior to Transport": The Role of Emergency Care

            Hess explained that there are competing schools of thought with respect to the role of emergency care. One school of thought favors treatment and stabilization of the patient before transport, under the assumption that, most often, it is easier to work outside the cramped quarters of an ambulance and have the benefit of both attending EMS personnel, rather than just the one who is not driving. Hess referred to this approach as the "stay and play" approach and seems to be a proponent of this approach. The so-called "scoop and run" approach, on the other hand, favors rapid transport to higher care. Any necessary procedures that can be done en route, according to this school of thought, should be done en route. Young, it seems, tends to practice this approach.

            Many of Hess' criticisms of Young's care seem to center around the debate on these two approaches. That is, Hess is of the opinion that, had Young and Greene treated Smith sooner, perhaps before transport, Smith's condition might have improved. Young explained that her objective was getting the very critical Smith to the hospital for a higher level of care. Hess conceded that intubation is a process that can be done en route to the hospital and whether to do so can be "a judgment call[]." The Good Samaritan law seeks to protect such judgment calls.

            Young indicated she knew Smith required intubation two to three minutes after her secondary assessment in the ambulance. But, since Smith was so ill in so many ways and considering that Young was continuing CPR and a method of ventilation, which Hess admitted was acceptable, Young's failure to immediately intubate does not rise to the level of willful or wanton negligence. Again, Hess himself admitted there was no evidence that the BVM was not properly ventilating Smith.

            (c)       Failure to Administer Cardiac Medications

            Greene stated that he and Young did not discuss the administration of the cardiac medications as a viable treatment, as the EMS personnel in Wheeler had done. So, there is no proof here that Young and Greene failed to do what they knew should have been done. Rather, Young and Green acted in a hurry and, as Young explains, were trying to get the very critically ill Smith to the hospital without delay.

            Young explained that she would have had to stop compressions and ventilation in order to have administered the cardiac medications. Hess conceded that it would have been below the standard of care to halt CPR to administer the medications when the patient is as near to the hospital as was the case here, especially when that patient is suffering from congestive heart failure and pulmonary edema. Hess also explained that chest compressions and ventilation are "as important" as the medications. We also note that Young was successful to an extent in restarting Smith's heart, having regained a "sinus brady rhythm" which, Hess agreed, was a good sign for a person who had been in asystole. Hess also explained that there may be some question as to whether the administration of the medications through the endotracheal tube would have been effective since Smith was suffering from pulmonary edema.

            In sum, Hess takes the position that, if Young and Greene had intubated sooner it, "might have improved the condition." Hess maintains that nothing that was done on the ambulance run caused Smith to go into asystole. He also testified that Young and Greene were "definitely not" out to harm Smith and that he does not contend the two did not care for Smith. Notably, Hess agreed that, even if they were negligent, Young and Greene were trying to save Smith.

            The record raises no question as to whether Young and Greene were willfully or wantonly negligent. We conclude that the appellees here conclusively established the former Section 74.002 as an affirmative defense.

            Therefore, we affirm the trial court's summary judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          December 14, 2005

Date Decided:             March 3, 2006