On Thursday morning, the Texas Eighth District Court of Appeals will be holding oral arguments over evidence that the El Paso Children’s Hospital is trying to keep from the public. As we reported back on January 27, 2022, the El Paso Children’s Hospital successfully convinced Judge Selena Solis to seal a court document in a malpractice case. The document is the Mayes affidavit. (click to read the affidavit), a doctor working at El Paso Children’s Hospital “presents a real danger to his patients and should be removed from the practice of medicine.” [emphasis ours]
The affidavit is troublesome for El Paso Children’s Hospital because a qualified doctor in the position to evaluate Canales found that Canales is “a real danger” to the patients he provides medical care to. The malpractice lawsuit in which the affidavit was attached to alleges that Canales’ medical negligence was responsible for the death of a three-year-old child. In the lawsuit filed by David and Mariana Saucedo on August 10, 2020, the Saucedo’s allege that the death of their daughter was the result of the negligence of the hospital and Canales because the focus is not patient care, but instead profit.
As we have reported, El Paso Children’s Hospital has faced financial problems because its business model has not been viable since the hospital opened its doors. In 2015, the children’s hospital filed for bankruptcy and emerged as a non-profit 100% owned by the University Medical Center of El Paso (UMC), making it a quasi-governmental entity dependent on government funds but not subject to the Texas Public Information Act as other government entities are.
In the Mayes affidavit, Thomas Mayes, a doctor at El Paso Children’s Hospital who was tasked with accrediting Canales to practice medicine at the children’s hospital, wrote in his affidavit that Canales is dangerous to his patients. Because the affidavit is troublesome to the children’s hospital, its lawyers asked that the affidavit be removed from the public record. They succeeded last year.
In Thursday’s hearing, the lawyers for the children’s hospital will likely argue that the affidavit should be kept from the public because of a technicality under the law that allows hospitals to claim privilege of certain information if the person making the information available belonged to a committee that evaluates its doctors.
However, in this case, the document was already in the public record creating the unique situation where the judge had to find a way to “best” remove the document from the public without altering public court records.
Because of the judge’s order, the arguments before the appeals court are not available because they are filed under seal. However, the appropriateness of the removal of the affidavit is central to the hearing on Thursday as the Saucedo lawyers told the judge they would appeal her ruling.
The appeals court is expected to rule on whether Judge Solis’ order to keep the troublesome affidavit from the public is valid. The affidavit is problematic for El Paso Children’s Hospital because it lays out the argument that El Paso Children’s Hospital allowed Roberto Canales to deliver patient care although the doctor, Mayes, tasked with reviewing the doctors working at the hospital are properly credentialed and able to deliver quality medical care said that Canales is not sufficiently trained for the services he was to provide. After Mayes was overruled by hospital officials, Canales failed to provide the proper medical care to the three-year-old child which, according to the Saucedo lawsuit, led to her death.
Mayes lays out the problems with Canales, including that he is a danger to patients and that money was the motivating factor in the affidavit that the hospital wants to keep from the public. Although the financial motive is laid out, more troublesome is whether the doctor is a “danger” to his patients.
Is Roberto Canales A Danger To Patients?
Thomas Mayes alleges in his affidavit that Roberto Canales “presents a real danger to his patients and should be removed from the practice of medicine.” El Paso Children’s Hospital has faced several financial crisis and its lawyers convinced the judge to remove the affidavit from public view.
During the months-long arguments over the affidavit, the lawyers focused on whether the affidavit was privileged and not for public view because of Mayes’ membership in a committee at the hospital. At no time did the lawyers argue that the affidavit is wrong in its assertion that Canales is a danger to patients.
Instead, children’s hospital officials have been focused on Canales’ lucrative business revenues and not on his ability to provide patient care. This has been discussed in several court filings in the malpractice case. Hospital officials have also alluded to the money factor.
In a recent open records request, in a text message thread, the revenue motive is alluded to between the CEO of UMC, Jacob Cintron and Cindy Stout, the CEO of the children’s hospital.
In the text messages, Stout texted that “Dr. Canales looks old” to Cintron. Cintron replied that “He is old!” He added that “I worry that his son won’t be able to pick up the slack,” apparently suggesting that the medical practice revenues that Canales was to bring to the hospital would not be sustainable without the elder Canales.
The text messages between the two CEOs were in 2018, before Canales was admitted to deliver patient services at the children’s hospital, and likely during the time Canales was being vetted by the hospital to work there. Because of the financial problems at the children’s hospital, both Cintron and Stout would have likely been looking at a profit motive involving Canales at the time.
The Mayes affidavit makes the profit motive the reason that Canales was allowed to provide medical care, although he was unqualified to so. This was because of the pressure from Cindy Stout to the hospital officials tasked with determining whether Canales should be providing medical services at the facility. Mayes, who was responsible for credentialing Canales at the time, argued that Canales should not be providing the medical services he had requested.
Later, after the death of the child, Mayes wrote the affidavit citing Canales as presenting “a real danger to his patients and should be removed from the practice of medicine.”
It is this affidavit that is central to the hearing on Thursday.
The hearing is scheduled for 10:00 am on Thursday at the courthouse.
This is a developing story. Stay with El Paso News for developments as they happen.