Annie Dorsey, Individually and as Next Friend of Ezra Dorsey v. Christus Hospital - St. Mary and Leslie McDonald Lovelace

• Court: Court of Appeals of Texas
• Decided: October 15, 2015
• Docket: 09-15-00141-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-15-00141-CV ________________

ANNIE DORSEY, INDIVIDUALLY AND AS NEXT FRIEND OF EZRA DORSEY, Appellant

V.

CHRISTUS HOSPITAL – ST. MARY AND LESLIE McDONALD LOVELACE, Appellees __________________________________________________________________

On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-193,144-B __________________________________________________________________

MEMORANDUM OPINION

Annie Dorsey appeals a no-evidence summary judgment granted in favor of

appellees, Christus Hospital – St. Mary (“Christus”) and Leslie McDonald

Lovelace, with respect to “neurological injury and damages associated with any

neurological injury” in Dorsey’s health care liability lawsuit. Dorsey raises three

issues for our consideration. We affirm the trial court’s summary judgment order.

1 BACKGROUND

Annie Dorsey, individually and as next friend of Ezra Dorsey, sued Christus

and Lovelace for alleged medical negligence. According to Dorsey’s petition, Ezra

and her twin brother were born prematurely at thirty-one weeks of gestation via an

emergency cesarean section on August 14, 2010. Dorsey alleged that after Ezra

was born, she was admitted to the neonatal intensive care unit at Christus “for

specialized medical services related to her pre-term and prenatal problems.”

According to Dorsey, on September 13, 2010, Ezra “suffered a skull fracture after

she was dropped or pulled on [sic] the floor by RN Leslie Lovelace, a Registered

Nurse employee of Christus Hospital – St. Mary in Neonatal ICU that was

responsible for taking care of Ezra.” Dorsey asserted that Ezra was “crying and

experienced significant trauma[,]” and a CT scan revealed that Ezra had a right

linear occipital and parietal skull fracture. Dorsey contended that Lovelace was

acting within the course and scope of her employment with Christus when Ezra

suffered the skull fracture.

According to Dorsey, Christus transferred Ezra to UTMB hospital in

Galveston “for an expert evaluation by a neurosurgeon and a neurologist based

upon the request of Ezra’s family.” Dorsey asserted that neurosurgeon Dr. Aaron

Mohanty evaluated Ezra a few months after her fall, and he explained that the fall

2 caused Ezra’s skull fracture, the skull fracture caused “significant trauma” to Ezra,

and the skull fracture had not yet healed. Dorsey further contended that in October

of 2011, pediatric neurosurgeon Dr. Timothy George of Dell Children’s Medical

Center of Central Texas evaluated Ezra when she was approximately fourteen

months old and issued an expert report, in which he attributed the skull fracture to

Ezra’s fall, noted that Ezra was hyperactive, and recommended a follow-up visit

with a developmental pediatrician.

Dorsey asserted that J. Walter Bordages, Ph.D., performed developmental

tests on Ezra and prepared a neuropsychological evaluation report, in which he

opined that Ezra’s evaluation “supported his diagnoses of a neurocognitive

disorder due to traumatic brain injury with behavioral disturbance as a result of the

skull fracture[.]” Dorsey contended that Bordages’s conclusions were confirmed

by Dr. Jerry Tomasovic, who, according to Dorsey, testified by deposition that the

skull fracture resulted in a traumatic brain injury to Ezra, and that Christus and

Lovelace breached the applicable standard of care, based upon a reasonable

medical probability.

Christus and Lovelace filed a hybrid motion for summary judgment as to

neurological injury and damages associated with any neurological injury.

According to Christus and Lovelace’s no-evidence motion, Tomasovic, who is

3 Dorsey’s “only retained expert qualified to opine as to causation[,]” had “testified

that he could not opine within a reasonable degree of medical probability that Ezra

Dorsey suffered any underlying brain injury as a result of Defendants’ actions[,]”

leaving Dorsey “unable to provide any reliable expert testimony that Ezra Dorsey’s

neurological injuries, if any, were causally related to Defendants’ alleged

negligence[.]” In addition, Christus and Lovelace contended that because Dorsey is

unable to provide evidence of causation, Dorsey also cannot prove that any future

lost wages or medical costs are attributable to the alleged negligence of Christus

and Lovelace. Christus and Lovelace state in their motion for summary judgment

that they filed a motion to exclude any opinion from Tomasovic as to whether the

fall caused Ezra’s neurological injuries.

Christus and Lovelace attached as summary judgment evidence a copy of

Dorsey’s original petition, second amended original opinion, and supplemental

expert designation; Christus and Lovelace’s motion to exclude Tomasovic’s

testimony on neurological injury; the deposition testimony of Tomasovic; excerpts

from Ezra’s medical records; the deposition of Bordages; and a “life care plan and

report” by Valerie Purcell and Al Davies, M.D. Dorsey’s supplemental expert

designation stated that Dorsey expected Tomasovic to testify regarding

how dropping Baby Ezra Dorsey on the floor high enough to sustain a skull fracture places the infant at risk for subsequent neurologic 4 sequelae and represents a breach of safety outside of the standard of care expected for an infant in a neonatal nursery, and why a longer timeframe is necessary for additional neurodiagnostic and neurodevelopmental assessments and future medical expenses to confirm the potential for complications from the closed head injury[.]

Dorsey did not designate any medical doctor other than Tomasovic as a retained

expert regarding the causal relationship between the fall and any neurological

injury or deficits Ezra suffered.

When asked during the deposition about what his role is in the case,

Tomasovic explained as follows: “[A] developmental pediatrician had identified

some delays in Ezra Dorsey’s development, motor/language. And that this

prompted connecting that to the injury that occurred after the child’s . . . birth. And

I was asked, [c]an you look at the records to see if you can connect the dots?”

When asked whether his report states that he cannot connect the dots at this point,

but it may be too early to tell for certain, Tomasovic testified, “That is accurate.”

According to Tomasovic, most neurologists believe that traumatic brain injury

cannot be diagnosed absent either a structural abnormality of the brain or

neurologic sequelae,1 such as altered mental status or seizures, at the time of the

injury.

1 “Sequelae” is the plural of “sequela,” which means “[a] condition following as a consequence of a disease.” Stedman’s Medical Dictionary for the Health Professions and Nursing, 1525 (7th ed. 2012). 5 Tomasovic explained that Ezra suffered a nondisplaced skull fracture,

meaning that “[t]he edges of the skull fracture were juxtaposed; they were next to

each other. One side was not compressed and pushed into the lining of the brain or

the brain itself.” According to Tomasovic, displaced skull fractures are more likely

to cause traumatic brain injury than nondisplaced skull fractures. Tomasovic

testified that when he used the term “closed head injury” in his report, he was

referring only to the skull fracture, and he explained that he had not concluded that

any traumatic brain injury occurred as a result of Ezra’s closed head injury. Later,

during cross-examination, Tomasovic defined “traumatic brain injury” as “an

injury to the skin, scalp, skull, and brain that occurs from an excessive blow to that

region and can generate a variety of abnormalities out of that experience[,]” and he

testified that an impact that is hard enough to fracture the skull is a traumatic brain

injury, and he explained that the fall was “significant enough to potentially cause

neurologic damage.”

Tomasovic explained that in Ezra’s case, he can neither rule out traumatic

brain injury nor determine that such an injury occurred. Tomasovic testified that

according to his training, if Ezra has global abnormalities, these deficits are likely

related to her prematurity, very low birth weight, and opiate exposure. Tomasovic

testified that Ezra has multiple risk factors for developmental delay. According to

6 Tomasovic, intrauterine growth retardation and low birth weight are significant

risk factors for developmental delay, and those factors are, statistically speaking,

the most likely cause of Ezra’s developmental delay. Tomasovic agreed that

placental insufficiency could have been the only cause of any developmental delay.

Tomasovic testified that within reasonable medical probability, there is more

than a 50 percent probability that the fall caused Ezra’s skull fracture, but he

explained that he cannot say within a reasonable medical probability that the fall

caused any brain injury to Ezra. Tomasovic explained during the deposition that

after he reviews Bordages’ report, he might find evidence therein to support a

claim of long-term neurological damage. However, after the deposition,

Tomasovic filed a supplemental expert report, in which he stated, “I reviewed the

neuropsychological evaluation of Ezra Dorsey by J. Walter Bordages, Ph.D., a

clinical pediatric neuropsychologist that is not a physician but nonetheless

qualified to give an expert opinion on baby Ezra Dorsey’s long term neurological

damages.” Tomasovic did not adopt Bordages’s opinion, but instead stated in his

supplemental report, “I am deferring to the expert opinion of Dr. Bordages on the

issue of long term neurological damages[.]” The trial court signed an order

granting Christus and Lovelace’s no-evidence motion for summary judgment as to

neurological injury and damages associated with any neurological injury.

7 ANALYSIS

We review summary judgment orders de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). We review the trial court’s granting of a

no-evidence motion for summary judgment under the standards set forth in Rule

166a(i). See Tex. R. Civ. P. 166a(i). To defeat a no-evidence summary judgment

motion, the non-movant must produce summary judgment evidence that raises a

genuine issue of material fact regarding each element challenged by the movant.

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The non-movant

raises a genuine issue of material fact by producing more than a scintilla of

evidence establishing the challenged element’s existence. Id.; Forbes Inc. v.

Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla

exists when the evidence is such that reasonable and fair-minded people can differ

in their conclusions. Ridgway, 135 S.W.3d at 601. If “‘the evidence offered to

prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence.’” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,

63 (Tex. 1983)). In determining whether the non-movant has produced more than a

scintilla of evidence, we view the evidence in the light most favorable to the non-

8 movant and disregard all contrary evidence and inferences. Id.; King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).

ISSUE ONE

In her first issue, Dorsey argues that Christus and Lovelace “filed an

improper summary judgment motion on unpled affirmative defenses.” Christus and

Lovelace filed a hybrid motion for summary judgment, and in the no-evidence

portion of the motion, Christus and Lovelace contended that Dorsey had not

produced expert testimony on the issue of causation and was unable to do so. The

trial court granted the no-evidence motion for summary judgment. Christus and

Lovelace’s no-evidence motion for summary judgment was not based on an

unpleaded affirmative defense; rather, it simply asserted that Dorsey was unable to

provide any evidence on causation, which is an essential element of her claims. See

generally Tex. R. Civ. P. 166a(i) (“[A] party may move for summary judgment on

the ground that there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial.”); Tex.

R. Civ. P. 94 (Lack of proximate cause is not one of the defenses which Rule 94

provides must be affirmatively set forth.). We overrule issue one.

9 ISSUE TWO

In her second issue, Dorsey contends the trial court erred by granting the no-

evidence summary judgment because “the trial court was barred by rules of law or

evidence from giving weight to any of the evidence offered to prove a vital fact.”

As explained above in our discussion of issue one, the motion for summary

judgment was a no-evidence motion, in which Christus and Lovelace argued that

Dorsey, who had the burden to prove causation, was unable to do so. At issue was

whether Dorsey could produce more than a scintilla of evidence of causation, not

the ability of Christus and Lovelace to prove an affirmative defense. See generally

Tex. R. Civ. P. 94, 166a(i). We overrule issue two.

ISSUE THREE

In her third issue, Dorsey argues that the trial court erred by granting the no-

evidence motion for summary judgment because genuine issues of material fact

exist regarding the proximate cause of Ezra’s neurological injury. Specifically,

Dorsey argues that Bordages is qualified to testify as an expert witness on the issue

of causation. In support of her argument, Dorsey cites Ponder v. Texarkana

Memorial Hospital, Inc., 840 S.W.2d 476, 477-78 (Tex. App.—Houston [14th

Dist.] 1991, writ denied). In Ponder, the Fourteenth Court found that an expert,

10 though not a medical doctor, should be allowed to testify to causation. Ponder, 840

S.W.2d at 478.

To recover under the Medical Liability Act, the defendant health care

provider’s “act or omission complained of must proximately cause the injury to the

claimant.” Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 180 (Tex.

2012); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West Supp.

2014).

[I]n a suit involving a health care liability claim against a physician or health care provider, a person may qualify as an expert witness on the issue of the causal relationship between the alleged departure and accepted standards of care and the injury, harm, or damages claimed only if the person is a physician[.]

Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a) (West 2011). Health care

institutions and registered nurses are included within the Medical Liability Act’s

definition of “health care provider.” Id. § 74.001(a)(12)(A)(i), (vii) (West Supp.

2014). Therefore, to qualify as an expert witness regarding the relationship

between the alleged negligence of Christus and Lovelace and the injury, harm, or

damages Ezra suffered, the expert witness must be a physician. See id. §§ 74.001,

74.403(a). Ponder was decided prior to the enactment of section 74.403(a).

Because Bordages is not a medical doctor, the trial court was statutorily prohibited

from considering Bordages’s opinions regarding causation. See id.

11 As discussed above, Tomasovic was Dorsey’s only expert witness

designated to testify regarding causation, and Tomasovic testified at his deposition

that he was unable to “connect the dots” between the skull fracture and Ezra’s

alleged neurological injury or deficits. Tomasovic indicated that he had not

concluded that any traumatic brain injury occurred as a result of Ezra’s skull

fracture. Additionally, in his supplemental expert report, Tomasovic did not adopt

Bordages’s opinion, nor did he clarify or reevaluate his own testimony in light of

Bordages’s findings; instead, Tomasovic simply stated that he deferred to

Bordages’s opinion. Tomasovic’s testimony that a fall that was severe enough to

cause a skull fracture was “significant enough to potentially cause neurologic

damage” does no more than create a surmise or suspicion that the fall caused

Ezra’s alleged neurological injuries; therefore, it does not amount to more than a

scintilla of evidence of causation. See Ridgway, 135 S.W.3d at 601. For all of these

reasons, we overrule issue three and affirm the trial court’s summary judgment.

AFFIRMED.

______________________________ STEVE McKEITHEN Chief Justice Submitted on July 27, 2015 Opinion Delivered October 15, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ. 12