CAUSE NO.

D-1-GN-08-003933

DAVID SELVERA, Individually and § IN THE DISTRICT COURT OF

on Behalf of the Estate of Mary Helen §
Selvera, Deceased, and as Next Friend §
for Celestina Selvera and §
Frank Matthew Selvera, Minors; §
Rosa Gonzales, Individually, David §
Anthony Selvera, Individually, Elizabeth §
Rendon, Individually, and Jose Angel §
Rendon, Individually § TRAVIS COUNTY, TEXAS
§
§
§
Plaintiffs §
§
v. §
§
§
ST. DAVID’S MEDICAL CENTER, §
And MERLITA FERMIN CRUZ, RN §
Defendants § 419th JUDICIAL DISTRICT

PLAINTIFFS’ ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, DAVID SELVERA, Individually and on Behalf of the Estate of MARY

HELEN SELVERA, Deceased, and as Next Friend for CELESTINA SELVERA, a minor, and

FRANK MATTHEW SELVERA, a minor; ROSA GONZALES, Individually, DAVID

ANTHONY SELVERA, Individually, ELIZABETH RENDON, Individually, and JOSE

ANGEL RENDON, Individually, hereinafter called Plaintiffs, complaining of ST. DAVID’S

MEDICAL CENTER, and MERLITA FERMIN CRUZ, RN, hereinafter called Defendants, and

files this suit under Rule 190.4 (Level 3), and for cause of action would show as follows:

PARTIES

Plaintiffs’ Original Petition Page 1

David Selvera, et al v. St. David’s Medical Center and Merlita Cruz RN
 Plaintiffs are residents of Travis County, Texas and may be contacted through their

attorney of record.

Defendant is ST. DAVID’S MEDICAL CENTER, and may be served with process by

certified mail through its registered agent C.T. Corporations, 350 N. St. Paul Street, Dallas,

Texas 75201.

Defendant MERLITA FERMIN CRUZ, RN is an individual and resides in Travis

County, Texas and may be served with process at her place of residence 9913 Big Boggy Trail,

Austin, Texas 78747-2684.

VENUE AND JURISDICTION

This Court has jurisdiction by virtue of the acts of negligence made the basis of this suit

occurred in Travis County.

FACTS

On or about November 6, 2006, MARY HELEN SELVERA was admitted through the

emergency room to the ST. DAVID’S MEDICAL CENTER. Mary was admitted as an inpatient

at St. David’s Hospital for a possible small bowel blockage. On or about November 7, 2006

with a nasogastric tube in place, Mary was taken to radiology for a barium follow through

examination, which involved placing barium fluid into the stomach and bowel while taking a

series of x-rays. The barium was apparently fed through the nasogastric tube.

After the barium procedure, Mary was transferred back to her hospital room where David

Selvera, her husband waited. Mary was transferred to her hospital room by Merlita Fermin

Cruz, RN, and a radiology technician. During this transfer and while in her room, Mary

developed severe difficulty in breathing and vomited the barium fluid. After significant delay,

an emergency condition was called and Mary transferred to Intensive Care.

Plaintiffs’ Original Petition Page 2

David Selvera, et al v. St. David’s Medical Center and Merlita Cruz RN
 Shortly after the incident, Mary was diagnosed with massive barium aspiration in her

lungs. Mary developed severe multiple organ shock and failure and died several days later.

NOTICE

By and through their attorney, Plaintiffs have complied with all formal notice and

medical authorization requirements Pursuant to CPRC Chapters 74.051 and 74.052.

DISCOVERY

Plaintiffs file this suit under Rule 190.4, (Level 3 Discovery).

NEGLIGENCE

ST. DAVID’S MEDICAL CENTER was negligent in the following particulars by and

through its nursing staff acts and failures to act as respondeat superior and/or apparent agency,

including Merlita Fermin Cruz who:

1. Failing to protect the safety of MARY HELEN SELVERA when health care
workers failed to follow safe transfer techniques upon transferring from radiology
to hospital room;

2. Failing to properly assess and document MARY HELEN SELVERA’s

respiratory status upon return to her hospital room in the ST DAVID’S
MEDICAL CENTER

3. Failing to timely recognize and document MARY HELEN SELVERA’s

respiratory distress.

4. Failing to timely call for an emergency code team to respond and treat MARY
HELEN SELVERA’s respiratory distress and massive barium aspiration.

DAMAGES

As a proximate and producing cause of the wrongful acts of Defendants identified in this

case, Plaintiffs seek damages pursuant to Texas Civil Practice and Remedies Code Chapter

71.002, 71.004 and 71.021 Wrongful Death and Survival Statutes. MARY HELEN SELVERA

Plaintiffs’ Original Petition Page 3

David Selvera, et al v. St. David’s Medical Center and Merlita Cruz RN
sustained damages and injuries including reasonable and necessary medical expenses and

physical pain and mental anguish, all of which were incurred prior to her untimely and

premature death.

Further, as a direct and proximate result of the acts and/or omissions which constitute

negligence on the part of Defendants, Plaintiff DAVID SELVERA has sustained lost of

consortium as that term is defined in law and loss of household services, both in the past and in

the future.

As a direct and proximate result of the acts and/or omissions which constitute negligence

on the part of Defendants, Plaintiff DAVID SELVERA, as Next Friend for his minor children

CELESTINA SELVERA and FRANK MATTHEW SELVERA, who sustained loss of

companionship and society and mental anguish.

As a direct and proximate result of the acts and/or omissions which constitute negligence

on the part of Defendants, DAVID ANTHONY SELVERA, MARY HELEN SELVERA’s adult

child, sustained loss of companionship and society and mental anguish.

As a direct and proximate result of the acts and/or omissions which constitute negligence

on the part of Defendants, ELIZABETH RENDON, MARY HELEN SELVERA’s adult child,

sustained loss of companionship and society and mental anguish.

As a direct and proximate result of the acts and/or omissions which constitute negligence

on the part of Defendants, JOSE ANGEL RENDON, MARY HELEN SELVERA’s adult child,

sustained loss of companionship and society and mental anguish.

As a direct and proximate result of the acts and/or omissions which constitute negligence

on the part of Defendants, Plaintiff ROSA GONZALES, parent to MARY HELEN SELVERA,

has sustained loss of companionship and society and mental anguish.

Plaintiffs’ Original Petition Page 4

David Selvera, et al v. St. David’s Medical Center and Merlita Cruz RN
 Plaintiffs, by and through their attorneys of record, respectfully reserves the right to

amend this Petition to allege with specificity any further acts and/or omissions as discovery may

develop and to allege specific damages in light of conditions and damages known at the time of

the trial of this case.

Pursuant to Chapter 74.351, Plaintiffs, by and through their attorneys of record, hereby

attach the Affidavit and curriculum vitae of Brian Richard Davis, M.D. as well as the expert

report and curriculum vitae of Kim Wirth, R.N. to this Petition.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that the Defendant be cited

to appear and answer and that on trial of this case, Plaintiffs have judgment against the

Defendant as follows:

1. For actual damages as specifically set out in this pleading;

2. For pre-judgment and post-judgment interest at the maximum amounts and for
the longest time permitted by law;
3. For costs of suit;
4. For such other further relief to which Plaintiff may be justly entitled.

Respectfully submitted,

OSCAR SAN MIGUEL

Attorney at Law
1602 E. 7th St.
Austin, Texas 78702
512/495-9995
512/482-0164 FAX

By: ____/s/_______________________
OSCAR SAN MIGUEL
State Bar No.: 17635690
ATTORNEY FOR PLAINTIFFS

JURY DEMAND

NOW COMES Plaintiffs and demand a trial by jury and for such have filed the required

Plaintiffs’ Original Petition Page 5

David Selvera, et al v. St. David’s Medical Center and Merlita Cruz RN
jury fees.

Plaintiffs’ Original Petition Page 6

David Selvera, et al v. St. David’s Medical Center and Merlita Cruz RN