AUSTIN (KXAN) — The mother of a newborn baby says she wants a Marble Falls clinic held accountable after her little girl was hurt.

Back in June, Dana Martinez brought her 11-day-old baby Mila to Children’s Health Center in Marble Falls. Mila was due for a two-week screening.

“[The medical assistant] laid her supplies on the table, that’s when I laid Mila down. She got out a plastic penguin gel pack.”

Martinez says the medical assistant heated the pack in a microwave to be used to help with a blood sampling. Martinez says when the medical assistant put the pack on Mila’s foot, the baby immediately began to cry. She says the medical assistant continued with the procedure, pricking the baby for a blood sample, and Martinez quickly realized something was wrong.

According to Martinez the medical assistant left the room to get the doctor.

“The doctor came in and said there’s something wrong with her foot, I need to look at it,” said Martinez. “That’s when I became very alarmed and said ‘What’s wrong with it?’ She removed the gauze and that’s when I discovered she was burned.”

The hot gel pack ultimately left a second degree burn.

KXAN spoke with a doctor from the Children’s Health Center over the phone. The doctor said in the 20 years they’ve done this procedure, an incident like this has never happened. They recently starting using a new brand of warmers, and heated it for the recommended 20 seconds. After the incident, they’re now only heating the packs for 10 seconds.

Martinez filed a claim with the Texas Medical Board, however they ruled the medical center did not violate the standard of care, and are not launching an investigation.

She tried to hire an attorney for some sort of recourse, but hasn’t been successful. Several have told her it would be too difficult to prove negligence in the case, and that it would be very costly.

An attorney not affiliated with the case tells KXAN that medical malpractice cases are harder to try today than they were 20 years ago. Cole Gumm, with Meyerson Law Firm, says it’s because of the Texas Medical Liability Act. He says laws created to protect doctors have made it more difficult for attorneys to prosecute cases.

“The legislature put in place what is now Chapter 74 of the Texas Civil Practice and Remedies Code, which outlines what a plaintiff’s attorney must do to bring what is called a medical liability claim.”

He says attorneys must provide 60 days notice to the medical provider they’re suing, and during that time cannot file the suit. Under the act they’re also required to get an expert report from a doctor or expert in the field. An attorney must establish that the standard of care in the claim they’re trying to bring was breached.

Gumm says an attorney will also look at damages, which could be either non-economic or economic. He says non-economic damages are pain and suffering, the sort of damages you can’t put a number on. He says these damages are capped at $250,000. Economic damages, like lost income and medical bills, are uncapped.

Martinez hopes if nothing else, other parents will learn from her case. She’s started a petition to stop the use of plastic gels in pediatrician offices.

“Even though it happened to my baby and hasn’t happened to others, it shouldn’t have happened at all.”

She says while baby Mila’s foot is now healed, she worries about long-term damage.

Warning: Some may find images graphic

Courtesy: Dana Martinez
Courtesy: Dana Martinez
Courtesy: Dana Martinez