Legal Update

December 2021

Kenneth Alan Totz, DO, JD, FACEP

It’s All Fun And Games Until Someone Gets Sued!

I hope everyone is safe and well. In this month’s Legal Update, I wanted to present a Texas medical malpractice case that was brought by a nurse, Michael Sonnier, against his employing hospital, Christus Good Shepherd Med. Ctr (Christus), in Longview, Texas. The case style is Sonnier v. Christus Good Shepherd Med. Ctr. Mr. Sonnier was a charge nurse working in the Christus surgery department for approximately 10 years. Mr. Sonnier was admitted to Christus for a routine hernia surgery in January of 2020. Mr. Sonnier had no complications from surgery or anesthesia, but when he awoke, some of his surgical colleagues had: (1) placed a diaper on him, (2) taped a plastic baggie containing mixed nuts to the diaper and written, “These nuts!” on the baggie, (3) signed the diaper, both inside and out, with messages such as, “Robin was here! Get well soon!” in the area of the genitals, and “poop shoot” on the buttocks portion, (4) attached a colostomy bag to his abdominal wall, although the hernia procedure necessitated no such procedure or device, and (4) painted his toenails bright red. Mr. Sonnier was apparently not amused at the antics of his fellow surgical staff colleagues. Mr. Sonnier made a claim against Christus for intentional infliction of emotional distress for placing him in a diaper, painting his toenails, and attaching the colostomy bag to his abdomen. Mr. Sonnier also made claims against Christus for assault, battery, and gross negligence based on the same conduct. In addition to the above direct claims against Christus, Mr. Sonnier claimed that Christus was also vicariously liable for the acts of its employees via the respondeat superior and ratification doctrines. These doctrines allow an employer to become liable for the acts and omissions of the employees they employ if the employee’s acts or omissions are performed during the scope of their duties. Mr. Sonnier had a very strong liability claim against all parties involved, with the exception of one problem: Mr. Sonnier never presented an expert witness report to the defendants within the 120 day timeframe required by Texas Law in a health care liability claim. Consequently, the court dismissed the suit.

This case brings to light many issues we face on a regular basis when taking care of our friends, family members, and colleagues. While it may have appeared that the antics perpetrated against Mr. Sonnier might have appeared to be harmless and in jest, he was obviously humiliated and found little humor in his colleague’s behaviors. For any of you that have ever been a patient in a hospital, it can be an extremely vulnerable time in your life. The courts and juries are terribly sympathetic to this fact and have punished such similar behaviors many times in the past. Furthermore, this case demonstrates a scenario where Mr. Sonnier’s co-workers could have been charged criminally for their assault and battery accusations, a situation not covered by malpractice insurance, and claims that don’t place a positive light on future job applications. When the situation arises to take care of a friend, family member, or colleague, please keep this case in mind.

Kenneth Alan Totz, DO, JD, FACEP

No information within this publication should be construed as medical or legal advice. Independent medical and/or legal advice should be sought based on each individual’s particular circumstances.