Children’s Hospital Blocking Key Deathbed Testimony In Saucedo Case

As a reminder: words in blue are links to articles providing greater context.

Attorneys for El Paso Children’s Hospital, Roberto Canales and the other defendants in the malpractice case over the death of Ivanna Saucedo filed court documents this week asking that the judge block the deposition of Dr. Thomas Mayes who is on his death bed. Mayes’ affidavit was attached to the original lawsuit filed a little over a year ago. The Saucedo’s have alleged that pediatrician Roberto Canales was negligent in his care of Ivanna causing her death. Mayes wrote in his affidavit that “Canales presents a real danger to his patients and should be removed from the practice of medicine.”

Mayes is a doctor with vast experience and was the individual in charge of approving doctors that practice at El Paso Children’s Hospital. Mayes refused to approve Canales but was overridden by the hospital’s administrators because the hospital “unable to turn a profit” needed Canales’ “millions of dollars each year” from his pediatric practice.

It is important to note that the attorneys defending El Paso Children’s Hospital and the doctors involved in the case have not alleged that Mayes has lied in his court filings, but rather what Mayes has stated is “privileged” information that should not be in the public record.

In March of last year, the defendant attorneys asked the court to throw out the so-called Mayes affidavit. In his affidavit, Mayes wrote that Roberto Canales was “unqualified to practice pediatric critical care medicine”. Canales was the primary doctor in the Saucedo case.

Readers can read the Mayes affidavit by using this link.

Mayes was in the position to directly evaluate Canales’ medical expertise as Mayes oversaw “credentialling” the doctors that provide services at El Paso Children’s Hospital. Mayes refused to allow Canales to practice critical care medicine but was overruled by the hospital’s administrators. The hospital has a history of financial troubles, including a bankruptcy shortly after it opened. Canales has a lucrative pediatric practice and the children’s hospital needs Canales to shore up the hospital’s finances with his practice.

Defense Attorneys Try To Block Key Deathbed Testimony

In a court filing on September 9, 2021, the attorneys for El Paso Children’s Hospital and the doctors filed a motion asking that a scheduled deposition in October of Thomas Mayes be canceled. According to the court transcript from August 19, 2021, Mayes is “near death”. The Saucedo’s attorneys want to take his deposition as soon as possible so that they can “preserve his testimony.” [1]

At issue, according to the court filings, is that there is some controversy over what evidence, including testimony, the judge will allow in the case. The defendants’ do not want Mayes’ affidavit to be allowed in. They are claiming that Mayes revealed confidential information about the credentialing committee that oversaw Canales’ credentialing at the children’s hospital. The judge has not ruled on the challenges to the evidence.

Because Mayes is “near death” the Saucedo family attorneys wish to ensure that his testimony is “preserved” to use in court. Although the judge has not ruled on what is admissible, the Saucedo attorneys argue that Mayes’ testimony can be taken and then removed from the court record if the judge rules it as not admissible.

However, the court filing shows that the defendants want to block the Mayes testimony because they do not want it to be “improperly disclosed” until the court rules on its admissibility.

Defendant Lawyers Want To Block The First Amendment

The lawyers’ court filings suggest that the reason they are blocking Mayes’ testimony has little do with the judge’s upcoming rulings on the admissibility of the evidence, including the Mayes affidavit, and more to do with blocking media coverage of what Mayes has to say, under oath, about the practices at El Paso Children’s Hospital and the defendant doctors.

The lawyers seem to agree in the court documents that the issue of what testimony will be allowed at the hearing can be addressed after the deposition of Mayes by simply removing the portions that the court rules against. However, what the defendant attorneys are concerned about is the disclosure of the Mayes deposition to the news media. In the court document, the defendant attorneys want a court order ordering that “the deposition testimony” of Mayes be kept confidential. [1]

Specifically, the lawyers wrote that Mayes’ testimony may not be “discussed or disclosed by the parties or their attorneys to any other person or entity, including any news outlet, social media platform, blog, or expert witness.” [1]

In other words, the El Paso Children’s Hospital and the doctors do not want the public to understand what happened in the case of Ivanna’s death.

Children’s Hospital’s History of Hiding Public Information

As readers may remember, El Paso Politics has challenged the children’s hospital’s stance that it is not subject to open records laws governing the disclosure of information important to the public. El Paso Politics challenged the children’s hospital refusal to release public information, although it is owned by the University Medical Center of El Paso (UMC), which is funded with public dollars.

Although El Paso Children’s Hospital argues on one hand that it has “immunity” from lawsuits because it is a government entity, by virtue of UMC’s ownership, while at the same time arguing that it does not have to comply with Texas’ open records laws.

In its latest filing, the children’s hospital is now attempting to limit what the public learns from Mayes’ testimony about the inner workings of the hospital.

An attorney, who is familiar with the case, agreed to speak to El Paso Politics on the condition that we do not name them because they litigate malpractice cases. The attorney told us that the attempt to muzzle the news media by limiting access to public testimony is a “violation of the First Amendment,” and “unconstitutional.” Regarding the motions to block the testimony, the attorney told us it is “overreaching,” describing the defendants’ motion as a “pro-active gag order.”

When El Paso Politics asked the attorney if the testimony could be taken before the judge rules on the pending motions of what would be allowed by the court, they told us that it would not be a problem because any testimony that the judge rules as not admissible can be stricken from the testimony by the judge.

Lawyers Refuse To Comment

El Paso Politics sent an email to each of the defense attorneys via email to their official court email accounts asking for comment on their court filing on September 14. The email accounts we used are the email accounts used to file official court documents with the court.

We asked them to specifically comment on why they want to delay the testimony of Thomas Mayes who is “near death”. We pointed out that we understood that the court had not decided on what evidence it would allow but that once the court ruled the relevant parts of the testimony, if any, could be removed from Mayes’ deposition.

We asked, “why delay his testimony?”

None of the attorneys responded to our question, as of publication time.

Court Hearing Set

A court hearing has been set for Tuesday, September 21, to address the motions to delay the key testimony of Mayes, who is “near death”. El Paso Politics will be monitoring the hearing and will report on the outcome.

The question that remains is why is El Paso Children’s Hospital trying to limit what information enters the public realm about the practices at the hospital and its doctors. The judge’s ruling is expected to address whether the public has a right to know about the practices at the children’s hospital, which are guaranteed under the First Amendment.

Footnote:

1. “Defendant’s Joint Motion To Quash Deposition of Thomas C. Mayes, M.D. FAAP, FCCM As Noticed, Or, Alternatively, Joint Motion For Protective Order” (171st Judicial District Court, El Paso County, Cause No. 2020DCV2549), September 9, 2021.