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Appellate Practice Presents Oral Argument Before the Fifth Court of Appeals En Banc

November 2, 2020

Ann Saucer

The Fifth Court of Appeals sitting En Banc expressed skepticism of an ambulance company’s arguments for ending a patient death suit.

The three-justice panel’s August 2019 decision affirmed the dismissal of the late Gary Lew Maypole II’s family’s suit against Acadian Ambulance Service Inc. because the medical authorization form was missing information unknown to his surviving family members. The family requested a rehearing before the full en banc Court in February, and en banc review was granted, with the entire court hearing oral arguments Thursday via Zoom.

Gary Maypole II was admitted to a Sunnyvale hospital in July 2015 with heart problems and shortness of breath, according to court documents. Acadian Ambulance Services was charged with transporting him to an intensive care unit in Plano for surgical evaluation and a possible mitral valve replacement.

According to court documents, Mr. Maypole, then forty-nine years old, passed away shortly after his ride in an Acadian ambulance. The family’s attorney, S. Ann Saucer of Fears Nachawati PLLC, said Thursday the ambulance crew allegedly suffocated him to death by leaving a catheter tube in his throat, mechanically blocking his airway. According to an expert opinion that the family filed into court records, mechanical asphyxiation is a “never event.”

Ms. Saucer emphasized that her clients weren’t asking the Fifth Court of Appeals to write a new rule under the statute but follow the rule, which calls for abatement, not dismissal, in this case.

“The Legislature said abatement on all proceedings,” Saucer said. “And yet, here the penalty for this missing information is not abatement even though the plain, unambiguous statutory language says abatement. This court can fix that.”

Justice David Evans said he agreed the family should have provided more information upfront, but he disagreed that the proper solution was dismissal when the statute calls for abatement.

 

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