11/28/2018 2:52 PM Chris Daniel - District Clerk Harris County 2018-84843 Court: 190 Filed: CAUSE NO: JUDY KVETON, Individually and as IN THE DISTRICT COURT OF Personal Representative Of the Estate Of David Kveton; Deceased; BRADLEY and JENNY KVETON PENNINGTON Plaintiffs, $3 v. HARRIS TEXAS BAYLOR COLLEGE OF BAYLOR ST. MEDICAL CHI ST. HEALTH BAYLOR COLLEGE OF MEDICINE MEDICAL and ST. HEALTH SYSTEM CORPORATION Defendants. JUDICIAL DISTRICT <93 0 <29; PETITION (7 9X TO THE HONORABLE JUDGE OF COURT: NOW, JUDY Individually and as Personal Representative of the Estate Of David Kveton; BRADLEY and JENNY KVETON complaining Of BAYLOR COLLEGE OF BAYLOR ST. CHI ST. HEALTH BAYLOR COLLEGE OF MEDICAL and ST. HEALTH SYSTEM CORPORA (?Defendants?); and for cause Of action would respectfully show the Court an?e jury as follows: I. DISCOVERY CONTROL PLAN 1. Discovery in this case should be conducted under Level 3; pursuant tO Rule 190.4 of the TEXAS RULES OF CIVIL PROCEDURE. Plaintiffs respectfully request that this Court Envelope No. 29320152 By: Carolina Salgado 11/28/2018 2:52 PM enter an appropriate scheduling order so that discovery may be conducted in this case pursuant to Level 3. II. PARTIES 2. Plaintiff, JUDY KVETON, brings this suit in her individual ca?ty and as personal representative of the estate of her husband, David Kveton, De@d Plaintiffs, BRADLEY KVETON and JENNY KVETON PENNINGTON, b? this suit in their individual capacity. All Plaintiffs are residents of the State of 3. Defendant, BAYLOR COLLEGE OF is a domestic nonpro?t corporation duly existing and operating pur to law as Baylor College of Medicine at 1 Baylor Plaza, Houston, Texas may be served with citation by serving its registered agent James Banfield a?ylor Plaza, Suite 106a, Houston, Texas 77030, or wherever he may be found. KC) 4. Defendant, BAYLOR ST. MEDICAL CENTER is a hospital duly existing and operating pursua Cljaw with its principal place of business in Harris, County, Texas. This Defen?g may be served with citation by serving its President, Gay Nord, at 6720 Bertner @?ouston, Texas 7703 0, or wherever she may be found. 5. Defendant, ST. HEALTH BAYLOR COLLEGE OF MEDICINE is a hospital duly existing and operating pursuant to law with its principag?of business in Harris County, Texas. This Defendant may be served with citation by serving its registered agent, CT Corporation System, 1999 Bryan St., Suite 900, Dallas, Texas 75201, or wherever it may be found. 6. Defendant, ST. HEALTH SYSTEM CORPORATION, is a domestic entity and operating pursuant to law with its principal place of business in Harris County, Plaintiffs? Original Petition Texas. This Defendant may be served with citation by serving its registered agent CT Corporation System, 1999 Bryan St., Suite 900, Dallas, Texas 75201, or wherever it may be found. 7. To the extent that the above-named Defendants are conducting business pursuant to a trade name or assumed name, then suit is brought against them pursuaig the terms of Rule 28 of the Texas Rules of Civil Procedure, and Plaintiffs hereb?and that upon answering this suit, Defendants answer in their correct legal assumed name. 111 JURISDICTION AND VENU 8. Plaintiffs c1te to and fully incorporate herein th?cts set forth in Sections 11, IV, and of this pleading. 9. Plaintiffs af?rmatively plead that thl@l?t has because the damages sought are in excess of the minimum jur?gional limits of the Court. Furthermore, all of the causes of action asserted in this 0% arose in the State of Texas, and all of the parties 0 C2 to this action are either resident??$e State of Texas or conduct business in this State and committed the torts that are gsubject of this suit in whole or in part in Texas, as hereafter alleged in more detail. @ermore, one or more of the Defendants is a resident of the State of Texas and there complete diversity of citizenship. Therefore, this Court has both 0 subject matter??personal jurisdiction over all of the parties and all of the claims. 10. @is proper in Harris County, Texas under the general venue statute of TEX. CIV. PRAC. REM. CODE (West 2012) because all or a substantial part of the events or omissions giving rise to the claim occurred in Harris County, Texas and no mandatory venue provision applies. Plaintiffs? Original Petition IV. WRONGFUL DEATH AND SURVIVAL ACTIONS 11. These claims are brought pursuant to 71.002 and 71.021 of the Texas Civil Practice Remedies Code, more commonly referred to as Wrongful Death and Survival Actions. Judy Kveton was appointed independent executor of her husband?s estate in 17 CPR-030279 in Ft. Bend County, Texas and is the sole bene?ciary und@er husband?s C) will. Plaintiffs are the sole statutory bene?ciaries under the Texas ful Death Statuteand are ent1tled to ma1nta1n1nd1v1dual clalms thereunder. ?kg 0 v. FACTUAL 12. The phone call David Kveton had been $ng finally came on January 24, 2017. For more than a decade Mr. Kvetom??, had struggled with an increasingly debilitating heart condition. By Novemb &Ol4, Mr. Kveton had reached the point where a heart transplant was necessary. @s call was to tell him a heart had been found. 13. While Mr. Kveton and hi fJudy had anxiety about the surgery, they knew it was necessary. They also td?comf0rt in the fact that it was being performed at a legendary institutionBa?$t Luke? 5 Medical Center in the Texas Medical Center (?St Luke?s), a joint owned by Baylor College of Medicine and St. Luke?s Health Corporation (also known as CHI St. Luke?s Health)? a subsidiary of Catholicgth Initiatives, one of the nation?s largest healthcare systems. The Kvetons had donQeir research. They knew St. Luke?s was world-renowned. They had heard of the famed surgeons, Dr. Denton Cooley and Dr. O.H. Bud Frazier. They knew St. Luke?s was where the first successful heart and arti?cial heart transplants occurred. They had also seen St. Luke?s, St. Luke?s Health System Corporation?s, and Baylor College of Plaintiffs? Original Petition Medicine?s advertising?touting their skill, competency, and unparalleled expertise? working to convince patients that in a city with several options they were the ones to turn to. The Kvetons were so convinced that when Memorial Hermann Heart Vascular Institute hired Mr. Kveton?s cardiologist and several other physicians to start a heart transplant program there and asked the Kvetons to follow them to the nev$ogram, the Kvetons held to what they trusted. When the Kvetons arrived at St. they arrived believing they were at the best place in the world for a heart trans?f 14. Things moved quickly. Around 3 :00 PM. the next aft??j Mr. Kveton was being prepped for a surgery that would end up lasting well bey@rnidnight When Dr. Morgan came out of the operating room to meet Ms. Kveto her things had gone well. But things were not going well. Mr. Kveton was incoggcal condition. A day later, Dr. Morgan placed Mr. Kveton on extracorporeal oxygenation or ECMO, an advanced life support system that does the work of bo@ he heart and the lungs. Several other surgeries followed. Six days after the Hang Mr. Kveton was taken off ECMO only to be put back on a short time later. Mr. @on never woke up, and Mrs. Kveton was told that further care was futile. The fami??ided to remove life support. On February 2nd, Mr. Kveton - died. 15. The fami??s in shock. When Mrs. Kveton got home that afternoon she received a phone call none other than Dr. Frazier asking for permission to perform an autopsy to find 0 hat had gone so terribly wrong. Mrs. Kveton gave her consent, but no one ever called her back to tell her what they found. Instead she got a bill for more than $1,000,000. 16. Mrs. Kveton?s grief turned to anger a couple of months later when she opened the Plaintiffs? Original Petition following letter: ?35.335 9 5555333335535 3333:: 339355335; 333:- 5 9535 3.59.535 9535535 3335' 3.555353 5999.533 39333 93 D3 - 33333 3'5 953:3 93: .9539 5335; 9355353959 '093'590393'33'393. :33. 3535333391 35.55353 3555339 3393' 52-5 5303 5 35332535553 3.59 355555 :39 5355': 599593 5333-3359:. 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W99 0553,5535 33 39:33:33; 39.39..- 3.9-5.5 .3935; 5- 55353-3535. 55.5%? '93? 3355353393535- :%550.33 55599 535335.59. .593 5 599.5 3339-3 {395359353339 9933;533:955 395': 9.3253953533533533} 3'39 35535;;- 3'55: 3555.3 535' .3355 235535: 33 5 <59. mg. 0 Can-79553933 - - 3o What Mrs. @on did not know was that the darn the Defendants had constructed to keep her and gm like her from the truth was about to break. After multiple requests, and even litigation, Mrs. Kveton was able to obtain all of Mr. Kveton?s medical records, including the records from UNOS and LifeGift. They told the story that BCM and St. Luke?s were unwilling to tell. Plaintiffs? Original Petition 17. According to the records, the donor was a 6?0, 197 pound, 19-year-old male located in Shreveport, Louisiana. As one might expect from a donor that young, the testing performed to ensure suitability for transplant revealed the donor?s heart was in optimal condition. However, the heart was not the first organ St. Luke?s accepted. According to the records, St. Luke?s originally accepted the lungs and then later decide?? accept the heart too. A team of BCM physicians ?ew to Shreveport to retrieve th?gs and heart. A cross clamp was placed at 5:00 pm. and the heart was retrieved 5% the donor?s body at 5:19 pm. Twenty minutes later, the lungs were retrieved an?organs were ?own back to Houston on what was reported to be a 50-minute ?iglgt\x 18. Back in Houston, the records show Mr. Kv @vas taken to surgery around 3:30 the same afternoon. Assisting Dr. Morgan wasggother physician doing a fellowship at BCM named Dr. David Daniels. Dr. note from the transplant is brief and omits critically important informati??ncluding something known as ischemic time. Total ischemic time refers to the me from aortic cross clamp of the donor?s heart at the donor hospital to the time @leasing the aortic cross clamp at the recipient institution after transplant. For purp?f transplantation, the standard of care requires surgeons to be aware of warm aKled ischemic times. Warm ischemic time refers to the amount of time that an or at body temperature after its blood supply is stopped or reduced. Cold ischengSQime refers to the amount of time that the organ is chilled or cold and not receivin??ood When this case is tried, the evidence will show that the generally accepted standard of care is to keep ischemic time under four hours. The evidence will also show that the reason for this standard of care is that it is well known that compliance with the standard of care is related to better outcomes, particularly as it relates to what is known as Plaintiffs? Original Petition graft failure. According to the anesthesia records, the ischemic time in David?s case was four hours and twenty-three minutes. As the UNOS records bluntly state in bolded red letters, ?Maximum Cold Ischemic Time Exceeded.? 19. According to the records, complications were evident at the time of Dr. Morgan?s surgery. Speci?cally, the anesthesia records note biventricular heart failure hypotension which required high doses of inotropes and vasoconstn?s as well as a prolonged cardiopulmonary bypass time which is known to ang?g9actually result in a severe coagulopathy or bleeding disorder that required a nur@@f blood products. By the end of the surgery, although Mr. Kveton? 5 heart function@improved, it was not normal. Dr. Morgan decided to leave his chest open. In add' i@ according to Dr. Morgan?s note, ?atrial and ventricular pacing wires were placed@ control the heart? 20. Despite the complications that oc &during surgery, the records indicate Mr. Kveton?s heart improved. The followir?orning a bedside test revealed normal left and right ventricle function, an encou sign. Additionally, a CT scan of the head revealed no acute conditions that sugge? any brain damage. However, on the morning of January 27th, a nurse who was ca?r Mr. Kveton turned him despite the fact he had an open chest. It appears this?givas consistent with an order signed by Dr. Daniels following the 0 surgery, but theo@equences were devastating. The following entry comes straight from the medical @rds: $39-$33: Lingummg. cement Mai a?r?a? Eead passmaksr capture {rate 5365; vestibular ?eads were wrapped} and subsequently became {Sui}? 38s}. Cardiology st mam-re; sens-isms? spssassi leads hooked up to pace? am! new :3me approprisisiy at 19 bpm. The same nurse documented elsewhere that Mr. Kveton?s blood pressure dropped precipitously. When this case is tried, the evidence will show that turning patients like Mr. Kveton with open chests and a recovering heart carries major risks and should only be done Plaintiffs? Original Petition when absolutely necessary. The evidence will further show there was no reason to expose Mr. Kveton to such extreme risk at the time he was turned. 21. However, this error was compounded by a mistake Dr. Morgan and/or Dr. Daniels made at the time of the transplant. The evidence will also show that the standard of care requires that when a heart requires pacing, both atrial and ventricular should be ?5 unwrapped and connected to a pacer box, as Dr. Morgan?s note says w@one in this case. The evidence will show that the reason for this is because it is wel?gbwn that events like K9 what occurred on the 27th can and do happen and also wel?n that leads sometimes fail. The evidence will show that the benefit of connecti@oth leads is that it allows for an immediate remedy as opposed to the delay th @ults from having to unwrap and connect the alternate leads. However, that wasorggdone for Mr. Kveton. As a result, what should have been a quick and easy ?x prolonged event that would permanently damage Mr. Kveton?s new heart. 22. Mrs. Kveton was never event occurred, but the medical records show that after this event the heart was n?r1ger improving but was instead getting much worse. The medications Mr. Kveton to keep his blood pressure up had to be doubled. Within a few hours an intra?R balloon pump (IABP) was placed to improve Mr. Kveton?s cardiac output \0 @modynamics due to ?cardiogenic shock.? At 2:40 pm, when these efforts were?@ufficient, Dr. Morgan took Mr. Kveton back to the operating room for emergent ra operative mechanical circulatory support central ECMO with placement of a left ventricle vent. At the time of surgery, Dr. Morgan noted severely impaired function with an ejection fraction of just 20%. Because Mr. Kveton was now on ECMO a powerful anticoagulant or blood thinner known as Heparin had to be initiated via IV. The evidence Plaintiffs? Original Petition will show that a heart that was on its way to recovery was now doomed to fail and the stage was set for further complications. 23. The medical records also show that the following day there were signs of neurologic compromise. Jerky head movements were noticed which resulted in the addition of Propofol. Later that afternoon the IABP was replaced after an X-ray discov$ a bent tip. However, Mr. Kveton remained hypotensive and on pressors. This co ti ued on the 29th. By the 30m, it was apparent a total arti?cial heart was going to bg?i?isysary as a bridge to transplant. Overnight, Mr. Kveton was observed off of one @ew?ves but noted to be minimally responsive. On the morning of the 315?, a, CT showed a hypodensity suggesting an acute infarction. In addition, throug day lab values suggesting that Mr. Kveton was over-coagulated and at risk of aging started to be returned. For example, one of the physicians caring for Mr. Kveto ?Siavosh Saatee, had previously stated the goal of one test, the PTT or partial th$boplastin time, was between 60-80 seconds. However, Mr. Kveton?s values 0 o?@15t were 82.9, 91, and 85.8. In addition, his platelet counts fell from 51 at 11:20 a.@to 41 at 6:44 pm. When this case is tried, the evidence will show the standard o?Q? required Mr. Kveton?s physicians to recognize that these values re?ected higlgqeggels of anticoagulation than desired which placed him at risk of a bleeding disor @d required a response. However, the evidence will show this was essentially @red. On the evening of the 31St another study revealed a large circumfthial pericardial effusion or bleed which required yet another trip to the OR where the bleed was addressed and ECMO was removed. 24. The records also show that Dr. Morgan took Mr. Kveton to the operating room again on the 1St to close his chest only to take him back to the operating room the same day Plaintiffs? Original Petition to reinsert the central ECMO he had just removed. A neurologic examination that afternoon found Mr. Kveton was comatose, with no pupillary reaction, no cough/gag re?ex and no response to painful stimuli. It was on this day that doctors started to write that the prognosis was ?dismal.? The next day, the records confirm the consensus that all hope was lost. 25. In short, when this case is tried, the evidence will show that from th the donor . . . x@ . . heart was received until the day Mr. Kveton died there were a number @rrors, 1nclud1ng but not limited to those discussed above, by the physicians at Bay@llege of Medicine and the nurses at Baylor St. Luke? 3 Medical Center that accu?d and compounded until they eventually resulted in Mr. Kveton?s death. However\ if that were not bad enough, a subsequent investigation by The Houston Chro?l??nd ProPublica revealed that Mr. Kveton?s death was just the tip of the iceberg. 26. On May 16, 2018, The Houston @icle and ProPublica published an article highlighting the program?s failings attention to Mr. Kveton?s care and Mrs. Kveton? 8 search for answers. The ?lms found that ?in recent years, the famed program has performed an outsized @mber of transplants resulting in death or unusual complications, has lost physicians, and has scaled back its ambition for treating high-risk patients, marketing itself based on its storied Contrary to the materials, the journalists found that ?twice as many St. Luke?s patients die??ithin a year as would have been expected? and that in this metric, the program near the bottom nationally, according to the most recently published data.? They also found that between mid-2016 and mid-2017, the length of stay for heart transplant patients was the third longest of 125 programs in the country. With respect to Dr. Morgan, the journalists uncovered that he was far from experienced, having served as Plaintiffs? Original Petition the lead surgeon in only 18 heart transplants in the five years prior to his hiring as head of St. Luke?s transplant program. They also found prior lawsuits and examples of several errors, including sewing a major vein shut in one of his very first surgeries at St. Luke?s in early 2016.1 27. The journalists spoke to several of Dr Morgan 3 colleagues made it abundantly clear that Dr Morgan?s errors were both pervasive and @y known Dr Roberta Bogaev asked administrators to commission an external @221?; in late 2016 and stated, ?It becomes very ethically challenging to if you don?t have that confidence level in your surgeon.? Dr. Deborah Me the medical director of the St. Luke?s Heart Failure Program until early 2017 had multiple conversations with multiple administrators during my tenure who unwilling to get an external review to address the problems and unwilling to mag?mtan?al changes.? In a letter obtained by CBS News after the Chronicle/ProPubli??rticle was published, Dr. Meyers wrote a letter to St. Luke?s president, Ms. Nord o@1@?fying the root cause of the failings: ?In my opinion the shd?1g story of the Baylor St Luke?s CHI transplant program is one %r,eed careerism, corporate takeovers, appalling administrative ov %t failure of leadership, poor hiring practices, completely av awsuits, and the inevitable public distortions of their n, all of which have occurred as medicine has become perverted 111$ Sig business.? In the @f corporate medicine patient care has been reduced to patient volur?) and (relative value units) ?Pro?t? is euphemistically @margin? and the relentless focus on margin and patient volume, than on the individual patient and the development of patient centered 1 Mike 'Hixenbaugh and Charles .Ornstein, Heart Failure, Houston Chronicle (May 16, 2018), 17" 14.? ~43, {x .5944. 4 2. Tq?qngn. 4? 2.4 rhy?nqu? yrnp.? -.- ?44.11. ?55 131W 11:1 53:15.- cl: 1.11.411 1421:1131? 1.111111141112 31:13:11.! (11' L331: 1 ibuMQL-r Plaintiffs? Original Petition programs has driven much of the poor decision-making that has resulted in the abysmal failures highlighted by the article.?2 28. However, not only did the Defendants not make the changes that were needed to protect patients like David Kveton from a dangerous surgeon, they continued to actively misrepresent the quality of the program in an effort to drive ?patient volum$and obtain the desired ?margin,? luring patients like David Kveton into a deadly sit@on. Although some of the more egregious misrepresentations were removed @day after hospital administrators were questioned about them, the efforts to deny @eflect continued after the initial article was published. A website was created. 3 IKQY to Dr. Myers letter, Ms. Nord reportedly implored her not to send the letter to re?ters But powerful players were already acting. In June, The Centers for Medica@1d Medicaid services announced it would cut off Medicare funding for heart t@ants at St. Luke?s after concluding the hospital had not adequately addressed its gigs Around the same time, the Defendants put the program on a 14-day inactive st@s only to reopen it?a decision the evidence will show was made not because problems had been ?xed in two weeks but because once again the hospital wa?ggioritizing profits over patients. Although the Defendants claimed at the time n?have identi?ed ?systemic issues related to the quality of the program,? in OCQQUE Dr. Morgan was replaced. Tragically, for patients like David Kveton, it wa??oo little and far too late. QQ v1. CAUSES OF ACTION 29. At all times material to this cause, the physicians caring for David Kveton while he 2 Letter from Dr. Deborah Meyers as published in CBS News, Widow seeks ?truth? amid patient deaths at renowned heart transplant program (June 12, 2018) available at httm.? ?5 1. .3 swam u? $533133 53L EL. ch .Li? M?See Heart Transplant Facts available at m. 5-1. estiecizi?i?ae: malt-La: :1 mm: 1 ac? Plaintiffs? Original Petition was a patient at Baylor St. Luke? Medical Center, including but not limited to, Dr. Jeffrey Morgan, Dr. David Daniels, Dr. Siavosh Saatee, and Dr. Arthur Bracey, were acting within the course and scope of their employment and/ or agency as the employees, servants, agents, and/or alter egos of BAYLOR COLLEGE OF BAYLOR ST. CENTER, CHI ST. HEALTH BAYLOR COLLEGE and/or ST. HEALTH SYSTEM ORATION. Therefore, these Defendants are liable under the doctrines knowng?kpondeat superior, K9 alter ego, apparent, and/or ostensible agency, and/or agency O@oppel as those terms are defined and applied under the laws and statutes of the St@ Texas. 30. At all times material to this cause, the nur stistants, technicians, and others who cared for David Kveton while he was a at Baylor St. Luke?s Medical Center were acting within the course and scop??heir employment and/or agency as the employees, servants, agents, and/or alte?Eos of BAYLOR COLLEGE OF BAYLOR ST. MEDICENTER, CHI ST. HEALTH BAYLOR COLLEGE OF MEDICINE CENTER, and/or ST. HEALTH SYSTEM these Defendants are liable under the doctrines known as alter ego, apparent, and/ or ostensible agency, and/ or agency by estoppel as th?gxtoerms are defined and applied under the laws and statutes of the State of Texas. COUNTI. EGLIGENCE 3 1. When this case is tried, the evidence will show that from the time organs were being retrieved to the time David Kveton died, the physicians caring for him or providing services related to his care, including but not limited to, Dr. Jeffrey Morgan, Dr. David Daniels, Dr. Plaintiffs? Original Petition Siavosh Saatee, and Dr. Arthur Bracey, breached the standard of care in their care and treatment of David Kveton, said breaches of the standard of care constitute negligence as that term is de?ned by the laws and statutes of this State; and such breaches of the standard of care singularly or in combination with each other and the other actions of negligence identi?ed in this petition proximately caused David Kveton? death and resulting injuries and damages in this case. This negligence includes, but is @?mited to, the 11 ow1n 1) Allowing prolonged ischemic time; 2) The manner in which surgery was perform\ 3) Failing to unwrap and connect all 4 Writin an order to turn Mr. Kvet $9 5) Failing to act as a reasonabl prudent supervising physician; and 6) Failing to adequately res$d to an increased risk of bleeding. 32. When this case is tried, o??2gvidence will also show that Baylor College of Medicine, Baylor St. Luke?s @ical Center, CHI St. Luke?s Health Baylor College of Medicine Medical St. Luke?s Health System Corporation and its nurses breached the in their care and treatment of David Kveton, said breaches of the standard of negligence as that term is de?ned by the laws and statutes of this Stat