Christus Health Gulf Coast D/B/A Christus St John Hospital v. Jay Houston
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Opinion
ACCEPTED 01-14-00399-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/19/2015 3:46:27 PM CHRISTOPHER PRINE CLERK
No. 01-14-00399-CV
FILED IN 1st COURT OF APPEALS In The First Court of Appeals HOUSTON, TEXAS Houston, Texas 2/19/2015 3:46:27 PM CHRISTOPHER A. PRINE Clerk CHRISTUS HEALTH GULF COAST d/b/a CHRISTUS ST. JOHN HOSPITAL,
Defendant-Appellant, v.
JAY HOUSTON,
Plaintiff-Appellee. _____________________________________________________________
On Appeal from the 55th Judicial District Court Harris County, Texas _____________________________________________________________
BRIEF AND APPENDIX OF APPELLEE JAY HOUSTON _____________________________________________________________
David Hodges Martin J. Siegel Gabriel Assaad LAW OFFICES OF KENNEDY HODGES, LLP MARTIN J. SIEGEL, P.C. 711 W. Alabama Street 700 Louisiana Street, Suite 2300 Houston, Texas 77006 Houston, Texas 77002 Telephone: (713) 523-0001 Telephone: (713) 226-8566 Martin@Siegelfirm.com
Attorneys for Appellee Jay Houston TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ i
INDEX OF AUTHORITIES .................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT .................................................. vii
ISSUES PRESENTED FOR REVIEW .................................................................. viii
INTRODUCTION ................................................................................................ 1
STATEMENT OF FACTS ..................................................................................... 3
I. Houston’s Surgeries and Current Condition ................................. 3
II. The Evidence at Trial.................................................................... 6
A. Houston’s Case Against Christus’ Nurses............................ 6
B. Christus’ Case Against Dr. Holt ........................................... 8
C. The Trial Court’s Exclusion of Dr. Gomez’s Testimony ............................................................................. 9
III. The Verdict and Judgment ......................................................... 14
SUMMARY OF THE ARGUMENT ...................................................................... 16
ARGUMENT.................................................................................................... 17
I. Standards of Review ................................................................... 17
II. The District Court Did Not Abuse its Discretion in Excluding Dr. Gomez’s Testimony ....................................... 19
A. Dr. Gomez’s Testimony Was Properly Excluded as Irrelevant ........................................................................ 19
i B. There Was No Foundation for Dr. Gomez’s Opinion About Causation .................................................. 28
i. The Robinson Factors Demonstrate the Unreliability of Dr. Gomez’s Opinion ...................... 29
ii. Dr. Gomez’s Opinion Also Flunks the Gammill “Experience” Test......................................... 32
C. Dr. Gomez Was Not Qualified to Opine on Causation ........................................................................... 41
III. The Final Judgment is Correct ................................................. 44
A. The Trial Court Correctly Accounted for the Settlement Credit ......................................................... 44
B. The Court Correctly Calculated Prejudgment Interest ............................................................................... 47
C. The Court Did Not Abuse its Discretion in Deciding What Portion of Damages Christus Can Pay Periodically ......................................................... 48
PRAYER ......................................................................................................... 54
CERTIFICATE OF SERVICE .............................................................................. 55
CERTIFICATE OF COMPLIANCE ....................................................................... 56
ii INDEX OF AUTHORITIES
page Case
Bartosh v. Gulf Health Care Ctr. – Galveston, 178 S.W.3d 434 (Tex. App. – Houston [14th Dist.] 2005) ........... 37, 38, 39
Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014) ........................................................ 21, 22, 23
Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) .................................................................. 26, 27
Bradley v. Rogers, 879 S.W.2d 947 (Tex. App. – Houston [14th Dist.] 1994, writ den.) .................................. 27
Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) .................................................................... 42
Constancio v. Shannon Med. Ctr., 2012 WL 1948345 (Tex. App. – Austin 2012) ...................... 27, 28, 40, 41
Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214 (Tex. App. – Amarillo 2003) ......................................... 48
Duff v. Yelin, 751 S.W.2d 175 (Tex. 1988) .............................................................. 26, 27
Edinburgh Hosp. Auth. v. Trevino, 941 S.W.2d 76 (Tex. 1997) .......................................................... 44, 45, 47
E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995) .................................................. 29, 30, 31, 32
Exxon Corp. v. Makofski, 116 S.W.3d 176 (Tex. App. – Houston [14th Dist.] 2003, rev. denied)............................... 30
iii Fennern v. Whitehead, 2010 WL 2428458 (Tex. App. – Austin 2010) ........................................ 22
Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998) ............................................................. passim
Garrett Operators, Inc. v. City of Houston, __ S.W.3d __, 2015 WL 293305 (Tex. App. – Houston [1st Dist.] 2015)..................................................... 18
Hogue v. Columbia Med. Ctr. of Las Colinas, 2002 WL 33962000, No. DV-99-01417-L (193rd Dist. Ct. – Dallas County, July 24, 2002) .......................... 45, 46, 47
IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794 (Tex. 2010) .................................................................... 21
In re K.R.P., 80 S.W.3d 669 (Tex. App. – Houston [1st Dist.] 2002, rev. denied) ........................... 51, 53
In re O’Quinn, 355 S.W.3d 857 (Tex. App. – Houston [1st Dist.] 2011, mandamus den.)........................................................................................ 42
In re Windisch, 138 S.W.3d 507 (Tex. App. – Amarillo 2004) ......................................... 43
Keo v. Vu, 76 S.W.3d 725 (Tex. App. – Houston [1st Dist.] 2002, rev. denied) ............................ 18, 42
Lee v. United States, 765 F.3d 521 (5th Cir. 2014) ..................................................................... 49
Lette v.
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ACCEPTED 01-14-00399-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/19/2015 3:46:27 PM CHRISTOPHER PRINE CLERK
No. 01-14-00399-CV
FILED IN 1st COURT OF APPEALS In The First Court of Appeals HOUSTON, TEXAS Houston, Texas 2/19/2015 3:46:27 PM CHRISTOPHER A. PRINE Clerk CHRISTUS HEALTH GULF COAST d/b/a CHRISTUS ST. JOHN HOSPITAL,
Defendant-Appellant, v.
JAY HOUSTON,
Plaintiff-Appellee. _____________________________________________________________
On Appeal from the 55th Judicial District Court Harris County, Texas _____________________________________________________________
BRIEF AND APPENDIX OF APPELLEE JAY HOUSTON _____________________________________________________________
David Hodges Martin J. Siegel Gabriel Assaad LAW OFFICES OF KENNEDY HODGES, LLP MARTIN J. SIEGEL, P.C. 711 W. Alabama Street 700 Louisiana Street, Suite 2300 Houston, Texas 77006 Houston, Texas 77002 Telephone: (713) 523-0001 Telephone: (713) 226-8566 Martin@Siegelfirm.com
Attorneys for Appellee Jay Houston TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ i
INDEX OF AUTHORITIES .................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT .................................................. vii
ISSUES PRESENTED FOR REVIEW .................................................................. viii
INTRODUCTION ................................................................................................ 1
STATEMENT OF FACTS ..................................................................................... 3
I. Houston’s Surgeries and Current Condition ................................. 3
II. The Evidence at Trial.................................................................... 6
A. Houston’s Case Against Christus’ Nurses............................ 6
B. Christus’ Case Against Dr. Holt ........................................... 8
C. The Trial Court’s Exclusion of Dr. Gomez’s Testimony ............................................................................. 9
III. The Verdict and Judgment ......................................................... 14
SUMMARY OF THE ARGUMENT ...................................................................... 16
ARGUMENT.................................................................................................... 17
I. Standards of Review ................................................................... 17
II. The District Court Did Not Abuse its Discretion in Excluding Dr. Gomez’s Testimony ....................................... 19
A. Dr. Gomez’s Testimony Was Properly Excluded as Irrelevant ........................................................................ 19
i B. There Was No Foundation for Dr. Gomez’s Opinion About Causation .................................................. 28
i. The Robinson Factors Demonstrate the Unreliability of Dr. Gomez’s Opinion ...................... 29
ii. Dr. Gomez’s Opinion Also Flunks the Gammill “Experience” Test......................................... 32
C. Dr. Gomez Was Not Qualified to Opine on Causation ........................................................................... 41
III. The Final Judgment is Correct ................................................. 44
A. The Trial Court Correctly Accounted for the Settlement Credit ......................................................... 44
B. The Court Correctly Calculated Prejudgment Interest ............................................................................... 47
C. The Court Did Not Abuse its Discretion in Deciding What Portion of Damages Christus Can Pay Periodically ......................................................... 48
PRAYER ......................................................................................................... 54
CERTIFICATE OF SERVICE .............................................................................. 55
CERTIFICATE OF COMPLIANCE ....................................................................... 56
ii INDEX OF AUTHORITIES
page Case
Bartosh v. Gulf Health Care Ctr. – Galveston, 178 S.W.3d 434 (Tex. App. – Houston [14th Dist.] 2005) ........... 37, 38, 39
Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014) ........................................................ 21, 22, 23
Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48 (Tex. 2002) .................................................................. 26, 27
Bradley v. Rogers, 879 S.W.2d 947 (Tex. App. – Houston [14th Dist.] 1994, writ den.) .................................. 27
Broders v. Heise, 924 S.W.2d 148 (Tex. 1996) .................................................................... 42
Constancio v. Shannon Med. Ctr., 2012 WL 1948345 (Tex. App. – Austin 2012) ...................... 27, 28, 40, 41
Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214 (Tex. App. – Amarillo 2003) ......................................... 48
Duff v. Yelin, 751 S.W.2d 175 (Tex. 1988) .............................................................. 26, 27
Edinburgh Hosp. Auth. v. Trevino, 941 S.W.2d 76 (Tex. 1997) .......................................................... 44, 45, 47
E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995) .................................................. 29, 30, 31, 32
Exxon Corp. v. Makofski, 116 S.W.3d 176 (Tex. App. – Houston [14th Dist.] 2003, rev. denied)............................... 30
iii Fennern v. Whitehead, 2010 WL 2428458 (Tex. App. – Austin 2010) ........................................ 22
Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713 (Tex. 1998) ............................................................. passim
Garrett Operators, Inc. v. City of Houston, __ S.W.3d __, 2015 WL 293305 (Tex. App. – Houston [1st Dist.] 2015)..................................................... 18
Hogue v. Columbia Med. Ctr. of Las Colinas, 2002 WL 33962000, No. DV-99-01417-L (193rd Dist. Ct. – Dallas County, July 24, 2002) .......................... 45, 46, 47
IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794 (Tex. 2010) .................................................................... 21
In re K.R.P., 80 S.W.3d 669 (Tex. App. – Houston [1st Dist.] 2002, rev. denied) ........................... 51, 53
In re O’Quinn, 355 S.W.3d 857 (Tex. App. – Houston [1st Dist.] 2011, mandamus den.)........................................................................................ 42
In re Windisch, 138 S.W.3d 507 (Tex. App. – Amarillo 2004) ......................................... 43
Keo v. Vu, 76 S.W.3d 725 (Tex. App. – Houston [1st Dist.] 2002, rev. denied) ............................ 18, 42
Lee v. United States, 765 F.3d 521 (5th Cir. 2014) ..................................................................... 49
Lette v. Baptist Health Sys., 82 S.W.3d 600 (Tex. App. – San Antonio 2002) ............................... 21, 25
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) .................................................................... 18
iv Pack v. Crossroads, Inc., 53 S.W.3d 492 (Tex. App. – Fort Worth 2001, rev. denied).............. 42, 44
Pioneer Natural Resources USA, Inc. v. W.L. Ranch, Inc., 127 S.W.3d 900 (Tex. App. – Corpus Christi 2004, rev. denied) ....................................... 43
Plunkett v. Conn. Gen’l Life Ins. Co., 285 S.W.3d 106 (Tex. App. – Dallas 2009, rev. denied) ................... 30, 31
Prabhakar v. Fritzgerald, __ S.W.3d __, 2012 WL 3667400 (Tex. App. – Dallas 2012) ................. 19
Quiroz v. Covenant Health Sys., 234 S.W.3d 74 (Tex. App. – El Paso 2007, rev. denied) ......................... 31
Rehabilitative Care Sys. of Am. v. Davis, 43 S.W.3d 649 (Tex. App. – Texarkana 2001) ........................................ 39
Rowan Co., Inc. v. Acadian Ambulance Serv., Inc., 2008 WL 1989791 (S.D. Tex. 2008) ........................................................ 25
Sisters of St. Joseph of Tex., Inc. v. Cheek, 61 S.W.3d 32 (Tex. App. – Amarillo 2001, rev. denied) .................................... 21, 22, 25
Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354 (Tex. App. – Dallas 2009, rev. denied) ......................... 43
State Farm Lloyds v. Mireles, 63 S.W.3d 491 (Tex. App. – San Antonio 2001) ..................................... 38
State Offc. of Risk Mgmt. v. Trujillo, 267 S.W.3d 349 (Tex. App. – Corpus Christi 2008) ................................ 39
Texarkana Memorial Hosp., Inc. v. Murdock, 946 S.W.2d 836 (Tex. 1997) ........................................................ 23, 24, 35
Thompson v. Stolar, __S.W.3d __, 2014 WL 5023087 (Tex. App. – El Paso 2014) ................ 24
v W.C. Larock D.C., P.C. v. Smith, 310 S.W.3d. 48 (Tex. App. – El Paso 2010) ...................................... 21, 27
Whirlpool Corp. v. Camacho, 298 S.W.3d 631 (Tex. 2009) ........................................................ 28, 32, 33
Wiggs v. All Saints Health Sys., 124 S.W.3d 407 (Tex. App. – Ft. Worth 2003, rev. denied) ................................... 36, 37, 38
Wilson v. Shanti, 333 S.W.3d 909 (Tex. App. – Houston [1st Dist.] 2011, rev. denied) ................................. 18
Wolfson v. BIC Corp., 95 S.W.3d 527 (Tex. App. – Houston [1st Dist] 2002, rev. denied) ......... 19
Statutes and Rules
TEX. CIV. PRAC. & REM. CODE § 33.013 ...................................................... 46
TEX. CIV. PRAC. & REM. CODE § 74.301 ...................................................... 14
TEX. CIV. PRAC. & REM. CODE § 74.503 .......................................... 15, 48, 53
TEX. CIV. PRAC. & REM. CODE § 101.023 .................................................... 44
TEX. FIN. CODE § 304.1045 .......................................................................... 48
TEX. R. EVID. 401 ......................................................................................... 19
TEX. R. EVID. 402 ......................................................................................... 19
TEX. R. EVID. 702 .................................................................................. passim
vi STATEMENT REGARDING ORAL ARGUMENT
The Court can easily resolve this appeal without oral argument.
Christus’ appeal focuses on the trial court’s decision to exclude testimony
from the hospital’s expert cardiovascular and thoracic surgeon. But the
lower court’s decision was a conventional one applying familiar legal
standards. Reviewing it will not immerse the Court in overly complicated
facts or novel or difficult legal principles. The same is true for the other
issues Christus raises, which have to do with the district court’s formulation
of the judgment. Houston therefore believes that oral argument would not
significantly assist the Court in its disposition of this appeal.
vii ISSUES PRESENTED FOR REVIEW
1. In medical malpractice cases, causation requires proof that the act in
question was a substantial factor in producing injury. Christus’ expert
could not opine that damage to nerves in Houston’s shoulder was a
substantial factor in causing his subsequent hand disability – nor could
he say how much of the disability was due to the nerve damage as
opposed to other causes. Did the trial court abuse its discretion by
excluding the expert’s causation opinion?
2. An expert witness who bases his opinion on his professional
background needs sufficient relevant experience to validate the
opinion. Christus’ expert has never treated or even seen nerve
damage of the kind he claims Houston suffered, and he conceded that
he was unqualified to say whether it caused Houston’s specific hand
symptoms. Did the trial court abuse its discretion by excluding the
expert’s causation opinion?
viii 3. The Texas Supreme Court held in a case involving governmental
liability that a settlement credit should be applied before reducing
damages to the statutorily prescribed limit. The trial court did the
same in this medical malpractice case. Did the court err in this
regard?
4. Texas law gives trial courts discretion to order immediate payment,
rather than periodic payment, of some damages for future medical
care. Houston established at trial that he needs approximately
$140,000 for imminent follow-up surgeries, therapies, and the like.
Did the trial court abuse its discretion by ordering Christus to pay this
portion of the award upon entry of judgment rather than over ten
years?
ix INTRODUCTION
A jury found Christus St. John Hospital 60% liable for permanently
disabling Jay Houston’s left hand. During shoulder replacement surgery,
Houston’s orthopedic surgeon, Dr. Marston Holt, ruptured Houston’s
axillary artery, leading to clotting and a blockage of the artery. Jurors found
Christus nurses negligent for failing to alert Dr. Holt to symptoms of
ischemia – the deprivation of blood to Houston’s hand – that developed after
the operation. As a result, the ischemia persisted for days, and by the time it
was corrected, Houston’s hand was permanently disabled.
At trial, Christus offered the expert opinion of a cardiovascular and
thoracic surgeon, Dr. Miguel Gomez. Dr. Gomez opined that Dr. Holt must
have damaged nerves adjacent to Houston’s axillary artery when he ruptured
it, and that this caused some unspecified portion of Houston’s ultimate
disability. Dr. Gomez could not say how much of the disability was caused
by the nerve damage as opposed to the ischemia, or even that it was a
substantial factor in Houston’s outcome. Given this failing, the trial court
excluded the opinion, and its ruling is the main ground of this appeal.
The trial court did not abuse its discretion in striking Dr. Gomez’s
opinion on causation. The testimony would not have assisted the jury in its
primary task: apportioning responsibility between Christus and Dr. Holt.
1 Unable to even roughly quantify the effect of the supposed nerve damage on
Houston’s outcome, Dr. Gomez therefore also couldn’t say it was a
substantial factor in his disability. Unless this basic threshold is crossed,
there is no proof of causation in a medical malpractice case.
The trial court also acted within its discretion because Dr. Gomez’s
opinion was unreliable and he was unqualified to give it. Dr. Gomez does
not perform shoulder surgery and he has never seen an axillary artery injury,
let alone associated nerve damage. He did not examine Houston or rely on
medical literature. Above all, he is not an orthopedist and has no experience
with hand injuries and so could not opine about the source of Houston’s
disability. Asked, for example, if Houston’s current inability to grip is due
to the nerve damage he believes occurred during the operation, he conceded:
“That’s not my area of expertise.” The trial judge was therefore right to
exclude Dr. Gomez’s opinion.
Christus also appeals various aspects of the judgment, but the district
court correctly applied a settlement credit and calculated prejudgment
interest. The court was also within its discretion to only partially grant the
hospital’s request for periodic payment of future damages.
This Court should therefore affirm the judgment.
2 STATEMENT OF FACTS
I. Houston’s Surgeries and Current Condition
In 2008, Houston sought treatment for pain in his left shoulder. RR
6/81-82. 1 He had degenerative arthritis – “the ball and socket of the
shoulder were worn out.” RR 5/237. Dr. Holt recommended a partial
shoulder replacement to exchange part of the ball of Houston’s shoulder and
resurface it with a metal implant. RR 3/95, 5/237.
The surgery occurred on Thursday, January 8, 2009, at Christus. Dr.
Holt encountered unusually heavy bleeding during the procedure: “we saw
some bleeding coming from deep which… we spent time searching for. And
ultimately… it just sort of stopped spontaneously.” RR 3/98. Although Dr.
Holt didn’t know it at the time, he punctured or tore Houston’s axillary
artery in the course of the operation, which caused the bleeding. Id., RR
5/28-29. This artery supplies blood down the arm to the hand. RR 3/238;
Def. Exh. 9.
After surgery, Houston was transferred to the post-anesthesia care unit
or “PACU,” where he remained for approximately four hours. RR 4/65.
Nurses in the PACU documented that his hand was cool to the touch, that he
1 “RR __/__” refers to the designated volume number and page number in the reporter’s record. “CR __” refers to the designated page in the clerk’s record. “Houston App.” refers to the appendix attached to this brief.
3 lacked a radial pulse in his left wrist, and that he had poor blood flow in the
capillaries of his hand – called “capillary refill.” RR 4/67-92. He was then
transferred to a room, where he spent the night.
That evening and the next day, Houston’s hand was pale, cool and
clammy, with slow capillary refill and red spots. RR 3/40-41, 4/94, 106-09,
114-20, 6/86. There is conflicting evidence on whether he could feel or
move his hand or fingers the day after the surgery. Dr. Holt testified that he
couldn’t and attributed the symptom to the continued effect of Houston’s
anesthesia, called an “interscalene block.” RR 3/101-03, 185; Def. Exh. 5.
A Christus nurse, however, documented that Houston could partially move
and flex his fingers on the morning after the procedure. RR 3/243, 4/114-16;
Def. Exh. 1 at p. Christus000073. Houston was discharged at 5:00 p.m. on
Friday, January 9. RR 4/123; Def. Exh. 5.
Over the weekend, Houston had a fever and great pain. RR 3/48. By
Monday morning, he looked gray, his arm was swollen and he felt dizzy.
RR 3/50, 6/88. He and his wife called Dr. Holt, who told them to come to
his office. RR 3/50. After examining Houston, Dr. Holt told them to go to
the Christus emergency room. RR 3/51. He also called a vascular surgeon,
Dr. Gordon Martin, and asked him to meet Houston there. RR 5/10.
4 At the hospital, Dr. Martin examined Houston’s hand and decided he
was experiencing ischemia – a lack of normal blood flow – because his
axillary artery was blocked by clotted blood at the site of the rupture that
occurred during surgery. RR 5/10-18, 265, 3/139-40. He performed an
emergency bypass, grafting a segment of vein from Houston’s thigh to the
artery to circumvent the blockage and restore blood flow to the hand. RR
5/15-18. He did not see damage to Houston’s nerves adjacent to the axillary
artery during the procedure, though bruising or stretching of the nerves (as
opposed to “severing or cutting”) would not have been visible. RR 5/19, 27.
The bypass succeeded in immediately restoring blood flow to Houston’s
hand as well as some mobility to his fingers. RR 5/21.
Houston has permanent damage to the nerves and muscles in his left
hand. RR 3/145-47, 248, 5/22, 268-69. Despite extensive physical therapy
and two follow-up surgeries, he cannot use his hand normally or even fully
close it. RR 6/92-95, 101-02. He struggles with tasks of daily living, such
as dressing, bathing, and housework. RR 3/61, 6/104-08. He is in constant
pain and takes six pain medications daily, leaving him tired. RR 6/96. His
post-operative shoulder rehabilitation was also restricted, impairing function,
and he has right-handed problems from overcompensating for the disability
in his left hand. RR 5/269-70, 6/101. He lost time at work, and the ordeal
5 contributed to the demise of his marriage. RR 3/60, 6/98. Once an active
person who coached his son’s little league team, lifted weights and hunted,
he can no longer do any of these. RR 3/36, 6/102, 106-08. Houston’s life
care planner testified that he will need $389,189.16 in total future medical
care, including three surgeries and a wide variety of therapies and
medications. Pl. Exh. 12; RR 6/58-59.
II. The Evidence at Trial
Houston sued Christus and Dr. Holt for malpractice in 2011. CR 8.
He settled with Dr. Holt for $99,999.00, CR 104-05, 746 (amount of
settlement), but the case against the hospital went to trial in 2013.
A. Houston’s Case Against Christus’ Nurses
Houston’s case at trial centered on the hospital’s negligent nursing
care, which permitted his ischemia to persist undetected for days. This
included nurses’ failure to notify Dr. Holt of the absence of a radial pulse in
the PACU, RR 4/68-69; failure to notify him of abnormal symptoms such as
poor blood flow and impaired circulation in Houston’s hand once he left the
PACU, RR 4/76-77; failure to properly assess and document Houston’s
neurovascular condition at several different points during his hospital stay,
RR 4/94-97, 102-05; failure to check on Houston often enough, RR 4/99,
112, 123; failure to recognize the clinical importance of his missing pulse
6 and poor capillary refill, RR 4/107-08, 118; failure to document anything at
all about Houston’s status on one nurse’s shift, RR 4/120-23; and failure to
notify Dr. Holt of Houston’s alarming condition immediately before
discharge. RR 4/59-64. Several different witnesses testified that Christus’
nurses provided substandard care, and the hospital’s own expert orthopedic
surgeon conceded that Christus therefore shared liability for Houston’s
injuries. RR 3/253-60, 268. 2
Dr. Holt testified that if nurses had relayed the facts of Houston’s
condition to him during Houston’s hospitalization, he would have obtained a
consultation from a vascular expert, discovered the ischemia, and relieved
the blockage in time to prevent most or all of Houston’s eventual disability.
RR 3/122-30. Houston’s expert orthopedic surgeon confirmed: “With
reasonable medical probability, the mechanism of the neurologic injury, the
numbness, the weakness, the paralysis, is because of the lack of blood
flow… ischemia, the lack of blood flow locally to those nerves, was the
cause of the lasting damage he has.” RR 5/268. “Had it been corrected on
the 8th or the 9th [before Houston’s discharge from the hospital], it’s very
likely that lasting permanent damage would have been avoided.” RR 5/266.
2 See, e.g., RR 3/103-08, 115-27 (Holt testimony); RR 3/253-60 (Edwards testimony); RR 4/59-126 (Budge testimony); RR 5/240-63 (Vance testimony); RR 5/138-40 (Stringfellow testimony); RR 5/169-70 (Schumacher testimony).
7 B. Christus’ Case Against Dr. Holt
Christus defended the case by arguing that Dr. Holt was to blame for
Houston’s injuries. The parties agreed that Dr. Holt was not negligent for
cutting into Houston’s axillary artery because such an injury is an inherent
risk or complication of the shoulder replacement. RR 3/237, 279-80, 6/172;
see also Christus Brf. 8. Instead, the hospital’s orthopedic surgeon expert
testified that Dr. Holt was negligent in failing to sufficiently follow up with
Houston after the operation. RR 3/229-33, 240. Although Dr. Holt saw
Houston on the morning after the surgery and found him to be as expected at
that point in his recovery, RR 3/100-02, Christus’ expert opined that this
examination wasn’t thorough enough and that Dr. Holt should have seen
Houston more often. RR 3/229-33, 240. Houston’s orthopedic surgeon
expert agreed that Dr. Holt’s post-surgical care was deficient in this regard.
RR 5/280-81.
In addition, Christus presented expert testimony from Dr. Gomez that
Dr. Holt was negligent for failing to promptly investigate the unusual
bleeding during the shoulder procedure. RR 6/147. He specifically
criticized Dr. Holt for not visiting Houston in the PACU to “make sure that
there is not more bleeding going on, that there is not a major injury that
needed to be addressed that they missed in the OR.” Id. Dr. Gomez
8 acknowledged, however, that it would be “difficult to say” whether this
failure had any effect on Houston’s outcome, offering only that a better
result was “possible.” RR 6/147-48. “I mean, it’s – how much of his
nonfunctioning of his arm is nerve versus muscle and skin,” he opined, “I
am not an expert to testify to. So if the artery was repaired immediately, he
might have not had as much muscle and skin damage to his extremity. How
much nerve damage would have been saved, it’s hard to tell.” RR 6/148.
He added: “I mean, he had ischemic changes to his hand. He lost some skin.
He lost, you know – and how much muscle he lost, I’m not sure. I mean, I
didn’t examine Mr. Houston so it’s hard to tell completely. But I think skin
and muscle injuries would have been less.” RR 6/173.
C. The Trial Court’s Exclusion of Dr. Gomez’s Testimony
Christus also wanted to offer additional testimony from Dr. Gomez
supporting a second theory of how Houston was injured: that his nerve
damage occurred when Dr. Holt punctured or tore his axillary artery during
the shoulder surgery, rather than afterward as a result of the prolonged
blockage and ischemia. Houston App. Tab 1 (RR 5/304-07). The court
denied Houston’s motion to exclude this opinion before trial, but Houston
renewed it before Dr. Gomez testified. CR 164-76, 381; RR 5/293-94.
9 Dr. Gomez explained this opinion in a proffer during argument on
Houston’s motion. Houston App. Tab 1 (RR 5/304-07). He stated: “The
major branches of the brachial plexus are intimately involved with the
axillary artery at that point where it was injured. And so to injure the artery,
you almost invariably injure multiple nerves.” Id. (RR/305). He based this
opinion “on the anatomy” generally and his belief that Houston never
regained function in his hand after the operation. Id. (RR 5/305-06).
Although Dr. Gomez opined that Dr. Holt must have damaged nerves
during the operation, he could not say to what extent this harmed Houston’s
hand:
A. …And so [it is] almost impossible to determine what part was due to the injury during the first surgery and what was due to ischemia. It’s – it’s impossible to know.
Q. How would it ever be possible to know – I mean, would it ever be possible?
A. No.
Id. (RR 5/307).
In light of this causation testimony, the court questioned the
admissibility of Dr. Gomez’s opinion: “[I]f he can’t allocate how much,
then how can he offer the [jury] anything for them to hang their hat on?
They’ve got a thought out there and no further guidance as to a percentage.”
Id. (RR 5/319). Christus’ counsel responded to this by asking Dr. Gomez
10 whether Houston’s inability to grip was caused by the nerve damage that
supposedly occurred during surgery, but Dr. Gomez conceded: “That’s not
my area of expertise.” Id. (RR 5/321). As the court concluded:
Ms. Lunceford: He can’t allocate, but he can certainly say that based on reasonable medical probability, that he – that was a nerve injury that occurred to the radial nerve at the time of the original surgery.
The Court: I’m not sure you can just raise it and then lay it out there, because at that point if the jury makes any decision based on it, it’s not based on the evidence.
Id. (RR. 5/327).
The court therefore signed an order excluding Dr. Gomez’s testimony
about the nerve injury that supposedly happened during surgery. CR 540.
Christus’ counsel later proffered the entirety of Dr. Gomez’s pretrial
deposition transcript as the testimony it would have offered at trial but for
the court’s order. RR 6/166-67.
In his deposition, Dr. Gomez acknowledged that he is not a
neurologist and that he has never performed the surgery Dr. Holt did on
Houston or any procedure directly involving the axillary artery. Houston
App. Tab 2 (CR 183-84). In fact, he has never seen an injury to the axillary
artery. Id. (CR 193). He did not physically examine Houston, id. (CR 190);
RR 6/173, nor did he review or rely on any medical literature in forming his
11 opinions. Id. (CR 185-86). Dr. Gomez could not say how or by what
mechanism Dr. Holt damaged Houston’s nerves, explaining this lack of
knowledge by reiterating, “I’m not an orthopedic specialist.” Id. (CR 195).
Thus, he did not know if Houston’s nerves were stretched, lacerated or
something else. Id. (CR 211).
Dr. Gomez opined in the deposition that Dr. Holt must have damaged
Houston’s nerves during the procedure, id. (CR 189-90, 192), but he
vacillated on precisely which were affected:
A. There’s multiple nerves there. There’s the ulnar nerve, the median nerve, the musculotaneous nerve. Without examining him, it’s hard for me to tell how many of those were injured.
Q. So sitting here today, can you identify which nerves were injured during the surgery performed by Dr. Holt on January 8, 2009?
A. I mean, the ulnar nerve for sure was injured.
Q. Any other nerves?
A. Without examining him, it’s hard to know.
Q. Sitting here today, can you offer an opinion, within a reasonable degree of medical probability, as to which nerves were injured on January 8, 2009 during the surgery of Dr. Holt?
A. I believe the median nerve, the ulnar nerve, the musculotaneous nerves were injured.
12 Id. (CR 190-91). Later though, after reviewing a nerve conduction study
done on Houston, Dr. Gomez changed his opinion: “the radial nerve – I’m
sorry. I guess it was the radial nerve that had the majority of the injury.” Id.
(CR 192). Then he admitted that he was “not an expert” in the nerve
conduction test, called an EMG, either. Id. (CR 196).
Dr. Gomez could not say how much of Houston’s outcome is due to
nerve damage from any cause as opposed to muscle damage: “how much of
his nonfunctioning of his arm is nerve versus muscle and skin, I am not an
expert to testify to.” Id. (CR 200); see also id. CR 201 (“I’m not an expert
as far as nerve and muscle. And how much of his function is due to loss of
nerve versus due to loss of muscle function or muscle capacity, I can’t
comment on”).
He also acknowledged that some of Houston’s nerve damage must
have been caused by the ischemia and lack of blood flow after surgery, as
Houston maintains. Id. (CR 214). As Christus’ orthopedic surgeon expert
testified, closing off blood flow to the nerves in the hand kills them. RR
3/248. And since Dr. Gomez did not know the nature or degree of any
damage inflicted by Dr. Holt to the nerves during surgery, he had no way of
quantifying or comparatively assessing the extent of either cause of nerve
damage:
13 Q. Doctor, I’m just trying to figure out, the damage that was caused by the axillary artery injury that is solely a result of the axillary artery injury and not the nerve damage to Mr. Houston. Is it correct to say that you cannot offer that opinion within a reasonable degree of medical probability?
A. I don’t think anybody can.
Q. So you can’t offer that opinion within a reasonable degree of medical probability?
A. No. I don’t think anybody can.
Houston App. Tab 2 (CR 201).
III. The Verdict and Judgment
The jury found negligence and assigned 60% of the responsibility to
Christus and 40% to Dr. Holt. Christus App., Tab 2 (CR 569). It awarded
$1,610,000 in past and future physical pain and mental anguish, lost earning
capacity, past and future disfigurement, past and future physical impairment,
future loss of household services, and future medical care. Id. (CR 572-73).
Houston moved the Court to enter judgment on the verdict. CR 578-
82. Christus opposed the motion and argued that, contrary to Houston’s
proposal, the court should apply the cap on noneconomic damages under
TEX. CIV. PRAC. & REM. CODE § 74.301 before reducing the award in the
amount of the credit for Houston’s settlement with Dr. Holt. CR 60-01.
Christus also objected to Houston’s calculation of prejudgment interest and
14 costs and filed a request for periodic payment of future damages under TEX.
CIV. PRAC. & REM. CODE § 74.503. CR 583-85, 601-02.
Following an amended motion for entry of judgment and opposition
from Christus, the court entered final judgment. CR 722-26. Christus then
moved for a new trial, attacking the exclusion of Dr. Gomez’s testimony, the
calculation of the judgment, and the allotment of periodic payment versus
immediate payment. CR 727-52. Houston acknowledged that some of its
mathematical calculations were incorrect and therefore submitted an
amended final judgment correcting the errors, which the court signed on
April 7, 2014. CR 866-67, 873; Christus App. Tab A (CR 879-83). The
court denied the hospital’s motion for new trial the same day. CR 884.
The amended final judgment reduced Houston’s noneconomic
damages to $250,000 and entered a total judgment against the hospital,
including prejudgment interests and costs, of $1,215,842.59. The court
attached an Exhibit A to the judgment setting forth its rulings on Christus’
request for periodic payments. Christus App. Tab A (CR 882-83). It
concluded that $105,000 of Houston’s damages for expenses of future
medical care should be paid periodically over 10 years, while the remaining
$200,000 should be paid immediately. Id. Christus then moved again for a
15 new trial on the same grounds as its original motion, CR 885-909, which
was denied by operation of law.
SUMMARY OF ARGUMENT
The district court did not abuse its discretion in excluding Dr.
Gomez’s causation opinion. Because Dr. Gomez could not even generally
quantify how much of Houston’s disability is due to the nerve damage he
assumes occurred in surgery, his opinion could not assist the jury in its key
task at trial: dividing responsibility between the hospital and Dr. Holt. Dr.
Gomez was also unable to testify that the in-surgery nerve damage was a
substantial factor in his disability. Thus, he could not meet the long
established test for causation in medical malpractice cases. Recent
precedent from the Texas Supreme Court and earlier decisions confirms that
the trial court was within its discretion to order the exclusion in these
circumstances. See Point II(A), infra.
The trial court also acted within its discretion because Dr. Gomez’s
opinion was unreliable, and he was not a qualified witness under Rule 702.
Dr. Gomez has never seen an axillary artery injury or related nerve damage.
He did not examine Houston, and he can cite no testing or medical literature
supporting his opinion. He is not an orthopedist and so conceded that he
could not opine about whether the nerve injury caused Houston’s specific
16 deficits, such as his difficulty gripping objects. Christus relied on Dr.
Gomez’s clinical experience as the basis for his opinions, but it takes little
probing to see that Dr. Gomez actually lacks the necessary background. See
Point II(B), infra.
Finally, Christus’ objections to the judgment are unfounded. In
applying the settlement credit before the cap on noneconomic damages, the
lower court acted consistently with the most applicable precedent. The court
also correctly calculated prejudgment interest. And Christus is wrong in
claiming the court abused its discretion by declining to allow it to pay all of
Houston’s future damages over time. Evidence in the record supports the
court’s decision ordering periodic payment of only $105,000 of the
$305,000 in damages for future medical costs, as well as its decision
denying periodic payment of damages for future lost wages and loss of
household services. See Point III, infra.
The Court should consequently affirm the judgment.
ARGUMENT
I. Standards of Review
Christus’ first issue challenging the exclusion of Dr. Gomez’s
testimony is reviewed for abuse of discretion. As this Court recently
summarized:
17 We will uphold a trial court's evidentiary ruling excluding expert testimony if a legitimate basis for the ruling exists. We reverse only if the trial court acted arbitrarily, unreasonably, or without reference to any guiding rules or principles. An abuse of discretion is not demonstrated by a mere error in judgment. Neither will an appellate court reverse the trial court's conclusion even if it would have held differently.
Wilson v. Shanti, 333 S.W.3d 909, 912-13 (Tex. App. – Houston [1st Dist.]
2011, rev. denied) (citations omitted); accord Keo v. Vu, 76 S.W.3d 725, 730
(Tex. App. – Houston [1st Dist.] 2002, rev. denied). Above all, “[i]n an
abuse of discretion review, close calls must go to the trial court. Thus, trial
courts are given wide latitude in their rulings on the reliability of expert
testimony.” Id. (citations and quotation omitted); accord Mack Trucks, Inc.
v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (trial courts enjoy “broad
discretion”).
Christus’ second issue, which challenges how the trial court applied
the settlement credit and the cap on noneconomic damages, raises a legal
question that should be reviewed de novo. See Garrett Operators, Inc. v.
City of Houston, __ S.W.3d __, 2015 WL 293305 at * 8 (Tex. App. –
Houston [1st Dist.] 2015).
Its third issue – whether the lower court erred in denying Christus’
request that all of Houston’s future damages be paid periodically – is also
18 reviewed for abuse of discretion. See Prabhakar v. Fritzgerald, __ S.W.3d
__, 2012 WL 3667400 at * 8 (Tex. App. – Dallas 2012); Christus Brf 48.
II. The District Court Did Not Abuse its Discretion in Excluding Dr. Gomez’s Testimony
A. Dr. Gomez’s Testimony Was Properly Excluded as Irrelevant
Christus’ primary argument on appeal is that the trial court abused its
discretion in excluding Dr. Gomez’s opinion that Dr. Holt must have
damaged Houston’s nerves at the same time he punctured or tore his axillary
artery, and that this is responsible to some unknown degree for Houston’s
disability. See Christus Brf., Issue 1. The district court correctly excluded
this opinion for several reasons, beginning with the fact that it would not
have assisted the jury in its central task of apportioning liability between the
hospital and Dr. Holt. Expert testimony that does not help jurors resolve a
material factual dispute is irrelevant and inadmissible under Rules 702, 401
and 402 of the Texas Rules of Evidence. See Gammill v. Jack Williams
Chevrolet, 972 S.W.2d 713, 720 (Tex. 1998); Wolfson v. BIC Corp., 95
S.W.3d 527, 532 (Tex. App. – Houston [1st Dist] 2002, rev. denied).
The parties agreed that Dr. Holt and Christus were both somewhat
responsible for Houston’s injuries. Houston’s expert agreed with the
hospital that Dr. Holt should have followed up with Houston more
19 aggressively, while Christus’ expert agreed with Houston that the hospital’s
nurses were negligent. See pp. 7-8, supra. What the parties disputed was
the extent to which Dr. Holt and Christus each caused Houston’s final
condition – or the extent to which no one did if, as Dr. Gomez opined, some
nerve damage accompanied the artery injury, which was not the product of
negligence. In either case, the parties’ dispute centered on how much
responsibility the jury should assign to Christus versus Dr. Holt.
Since that was true, it served no purpose for jurors to hear that there
was an innocent cause of some portion of Houston’s disability if they could
not be told how significant it was. Even Dr. Gomez agreed that at least
some of Houston’s ultimate outcome was due to muscle and nerve damage
caused by post-operative ischemia, as Houston maintained, though he also
claimed that some other unspecified portion occurred during surgery.
Houston App. Tab 2 (CR 214). The trial court was therefore exactly right in
asking whether, if Dr. Gomez couldn’t “allocate how much, then how can he
offer the [jury] anything for them to hang their hat on? They’ve got a
thought out there and no further guidance as to a percentage.” Houston App.
Tab 1 (RR 5/319). Without an opinion on the extent to which Houston’s
nerve damage was caused during the operation, Dr. Gomez would only have
been inviting jurors to speculate about the central issue at trial: the
20 respective responsibility of Christus and Dr. Holt. Id. (RR 5/327) (“I’m not
sure you can just raise it and then lay it out there, because at that point if the
jury makes any decision based on it, it’s not based on the evidence”).
To attribute some portion of responsibility for Houston’s disability to
nerve damage that occurred during surgery, Christus had to show that Dr.
Holt’s actions were a substantial factor in bringing about the disability:
The two elements of proximate cause are cause in fact (or substantial factor) and foreseeability… Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred.
IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794,
798-99 (Tex. 2010) (citations omitted); see also W.C. Larock D.C., P.C. v.
Smith, 310 S.W.3d. 48, 56 (Tex. App. – El Paso 2010). Causing a trivial or
minimal part of the plaintiff’s injury is not substantial factor causation. See
Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 341, 345 (Tex. 2014);
Lette v. Baptist Health Sys., 82 S.W.3d 600, 602 n. 1 (Tex. App. – San
Antonio 2002) (cause must be more than “remote” or “minor”); Sisters of St.
Joseph of Tex., Inc. v. Cheek, 61 S.W.3d 32, 36 (Tex. App. – Amarillo 2001,
rev. denied) (same).
Christus asserts: “Dr. Gomez’s opinions included that the actions of
Dr. Holt were a substantial factor in causing the injury, and without which
21 actions, the permanent injury would not have occurred.” Christus Brf. 39-
40. But a review of the testimony Christus cites – at pages 320-21 of
volume 5 of the trial transcript – reveals that Dr. Gomez said nothing of the
sort. See Houston App. Tab 1 (RR 5/320-21). He neither used the phrase
“substantial factor” nor otherwise testified to that effect. See id. Nor could
he. Admittedly at a loss to assess the degree to which the supposed in-
surgery nerve damage caused Houston’s disability, Dr. Gomez was
necessarily unable to go farther and say that it was a substantial factor. See,
e.g., Sisters of St. Joseph, 61 S.W.3d at 37 (expert’s testimony that hospital’s
negligence “caused” death does not establish that it was substantial factor in
causation); Fennern v. Whitehead, 2010 WL 2428458 at * 5 (Tex. App. –
Austin 2010) (testimony that conditions “increased [plaintiff’s] risk” of
dying did not satisfy duty to prove they were substantial factors in death).
This inability to meet the established legal test for causation rendered his
opinion irrelevant.
The inadequacy of Dr. Gomez’s testimony in this regard is best
illustrated by the Texas Supreme Court’s recent decision in Bostic. The
plaintiffs there alleged that exposure to drywall products containing asbestos
sold by Georgia-Pacific caused Bostic’s mesothelioma, but the Supreme
Court held that their inability to quantify the extent of Bostic’s exposure to
22 Georgia-Pacific’s products precluded a finding that they were a substantial
rather than a trivial cause of Bostic’s disease. See id. at 355-56. This failure
was compounded by the plaintiffs’ inability to allocate causation between
Georgia-Pacific and another asbestos manufacturer:
Without any meaningful and scientific attempt to quantify the exposures from the two sources, the testimony was legally insufficient, for there was no meaningful way for the jury to conclude that Bostic’s exposure to Georgia-Pacific’s products was a substantial factor in causing his disease, nor was there any basis for the jury to apportion liability between these two sources of asbestos.
Id. at 359.
Plaintiff’s failure in Bostic is identical to Dr. Gomez’s shortcoming
here. Since Dr. Gomez cannot quantify causation in even general terms or
allocate it between the two events claimed to be responsible for Houston’s
condition – Dr. Holt’s supposed in-surgery damaging of nerves, and the
nurses’ failure to prevent prolonged ischemia – his testimony is legally
insufficient evidence of causation. The district court was therefore correct to
strike it.
Decisions before Bostic also confirm the validity of the trial court’s
order. In Texarkana Memorial Hosp., Inc. v. Murdock, the Supreme Court
reversed a judgment awarding $500,000 in medical expenses to the plaintiffs
where their expert proved only that the hospital had caused a condition
23 responsible for some of the expenses. See 946 S.W.2d 836, 840-41 (Tex.
1997). The expert’s failure to allocate which part of the injury was caused
by the hospital and which by preexisting illnesses required reversal of the
award. See id. “[I]t is axiomatic that a jury must have an evidentiary
foundation on which to base its findings.” Id. at 841. Dr. Gomez’s inability
to allocate causation in this case is equally fatal to his opinion.
Similarly, in Thompson v. Stolar, the jury found a chiropractor to be
20% responsible for the plaintiff’s knee injuries because he delayed in
referring her for treatment of an infection, with 80% responsibility assigned
to another doctor. See __ S.W.3d __, 2014 WL 5023087 at * 3 (Tex. App. –
El Paso 2014). But the plaintiff’s expert testified only that damage resulting
from the infection “would have been much less likely” with a prompt
referral, and he could not “assign a percentage of ‘less likely,’” saying
“there’s just no way to know.” Id. at ** 7-8. The court of appeals found this
to be insufficient evidence of the chiropractor’s share of responsibility. Id.
at ** 8-9. Here too, Dr. Gomez’s inability to quantify the ultimate effects of
the nerve damage he claims occurred during surgery – or even describe it as
a substantial factor – renders his opinion no evidence of Dr. Holt’s
causation.
24 And in Lette, the court held that plaintiff’s expert’s opinion was not
proof that the drug Toradol caused the plaintiff’s injuries since the expert
could opine only that it “caused or potentiated” bleeding. 82 S.W.3d at 602.
The testimony “fail[ed] to quantify the degree to which the administration of
the Toradol was related to the arterial bleed; that is, whether the Toradol was
a remote, minor or substantial factor in causing the bleeding to occur.
Accordingly, the testimony fail[ed] to meet the standard required for proof
of medical causation.” Id. at n. 1. Because Dr. Gomez is similarly incapable
of assessing the extent of causation in this case, his opinion was correctly
excluded. See also, e.g., Rowan Co., Inc. v. Acadian Ambulance Serv., Inc.,
2008 WL 1989791 at ** 11-12 (S.D. Tex. 2008) (dismissing case since
plaintiff’s expert could not, among other failings, “assign a percentage of
chance that [the injury] was a result of inadequate pain control”); Sisters of
St. Joseph, 61 S.W.3d 32, 36-37 (expert’s inability to quantify degree to
which nurses’ failure to ambulate patient caused death, or testify that it was
substantial factor in death, required reversal).
Christus argues that Dr. Gomez’s testimony “would have provided
assistance to the jury in their deliberations by helping them understand
human anatomy and how injuring the axillary artery… would unavoidably
damage the surrounding nerves.” Christus Brf. 17. But the trial court did
25 not disapprove of general testimony on anatomy. Houston App. Tab 1 (RR
5/308). What the court rightly excluded was his opinion on causation since
his inability to allocate fault would only invite speculation about the parties’
relative responsibility. After all, that was the key issue facing the jurors.
See, e.g., Duff v. Yelin, 751 S.W.2d 175, 177 (Tex. 1988) (faulting expert’s
opinion that hospital’s care was a “possible cause” of injury; “the principal
reason behind this case going to trial [was] to affix liability upon the
negligent party”).
Christus also argues that Dr. Gomez’s testimony “would have aided
the jury in determining when Mr. Houston’s permanent nerve injury
occurred, and to the possibility that Dr. Holt’s negligence, or no one’s
negligence, rather than a delay in performing the artery repair surgery, was
the cause in fact of Mr. Houston’s unfortunate nerve injury.” Christus Brf.
17 (emphasis added). This only points up another failing in Dr. Gomez’s
opinion: because he could not even generally quantify the degree of
causation stemming from asserted nerve damage during surgery, there was
no more than a possibility – as Christus concedes in the passage above – that
it was a substantial factor in Houston’s ultimate outcome. And it is well
settled that expert testimony establishing no more than a possible causal
effect is inadmissible. See Bowie Mem. Hosp. v. Wright, 79 S.W.3d 48, 52-
26 53 (Tex. 2002); Duff, 751 S.W.2d at 176; Bradley v. Rogers, 879 S.W.2d
947, 957-59 (Tex. App. – Houston [14th Dist.] 1994, writ den.). “‘Perhaps,’
‘possibly,’ ‘can,’ and ‘could’ indicate mere conjecture, speculation or
possibility rather than qualified opinions based on reasonable medical
probability.” W.C. Larock, 310 S.W.3d at 58.
Finally, Christus cites Constancio v. Shannon Med. Ctr., 2012 WL
1948345 (Tex. App. – Austin 2012), for the proposition that Dr. Gomez
need not have allocated causation between the claimed in-surgery nerve
damage and ischemia. Christus Brf. 35, 39. Constancio predates Bostic and
is not on point in any case because jurors there were not assigning relative
percentages of responsibility to the parties – they were simply deciding
whether the defendant’s negligence (failure to perform certain monitoring)
caused the patient’s death in light of his preexisting illnesses. See 2012 WL
1948345 at **8-9.
Moreover, the expert in Constancio opined that the patient would
have survived had the monitoring occurred, even considering the preexisting
ailments; that the “respiratory event” the monitoring would have detected
was a “major factor” in his death; and that the patient’s preexisting
conditions were less than 50% responsible for his death. Id. at ** 9-10. All
these together easily satisfied the “substantial factor” test, see id. at 11,
27 whereas Dr. Gomez could not opine that the supposed in-surgery nerve
damage rather than the ischemia caused Houston’s current condition, that it
was even a “major factor” in that condition, or that ischemia was less than
50% responsible for it. Constancio is therefore inapposite.
The trial court correctly concluded Dr. Gomez’s opinion would not
aid the jury in its all-important task of apportioning responsibility. It was
therefore within its discretion to exclude it.
B. There Was No Foundation for Dr. Gomez’s Opinion About Causation
Dr. Gomez’s opinion that Dr. Holt must have damaged nerves near
the axillary artery during surgery, which in turn caused some unspecified
portion of Houston’s disability, was also unreliable. “[C]ourts are to
rigorously examine the validity of facts and assumptions on which the
testimony is based, as well as the principles, research, and methodology
underlying the expert's conclusions and the manner in which the principles
and methodologies are applied by the expert to reach the conclusions.”
Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 647 (Tex. 2009). “Scientific
evidence which is not grounded in the methods and procedures of science is
no more than subjective belief or unsupported speculation. Unreliable
evidence is of no assistance to the trier of fact and is therefore inadmissible
under Rule 702.” Gammill, 972 S.W.2d at 720 (quotation omitted).
28 i. The Robinson Factors Demonstrate the Unreliability of Dr. Gomez’s Opinion
Dr. Gomez’s opinions should first be assessed against the familiar
factors for judging reliability set forth in E.I. du Pont de Nemours and Co.,
Inc. v. Robinson, 923 S.W.2d 549 (Tex. 1995). “[A] trial court should
consider the factors mentioned in Robinson when doing so will be helpful in
determining reliability of an expert's testimony, regardless of whether the
testimony is scientific in nature or experience-based.” Mack Trucks, 206
S.W.3d at 579. The factors include:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective interpretation of the expert;
(3) whether the theory has been subjected to peer review and/or publication;
(4) the technique's potential rate of error;
(5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or technique.
Robinson, 923 S.W.2d at 557.
Dr. Gomez’s opinion has not been tested, a fact Christus ascribes to
medical ethics. Christus Brf. 34. But if injuries to the axillary artery
29 regularly produced permanent nerve damage and symptoms like Houston’s –
such as through accidents or complications from other medical procedures –
there could well be documentation of that fact in the literature. Yet Dr.
Gomez disclaimed reliance on testing or literature in reaching his opinion.
Houston App. Tab 2 (CR 185-86). See Exxon Corp. v. Makofski, 116
S.W.3d 176, 187 (Tex. App. – Houston [14th Dist.] 2003, rev. denied)
(“Havner instructs us to be especially skeptical of scientific evidence that
has not been published or subject to peer review”). Hence the first, third,
fourth and fifth Robinson factors cut against admissibility.3
Moreover, Dr. Gomez relies prominently on his own “subjective
interpretation.” Robinson, 923 S.W.2d at 557. He conclusively asserts that
damage to Houston’s axillary artery must have correspondingly produced
nerve damage, though he has never seen such an injury or read about it in
the literature, and that the postulated nerve damage accounts for some of
Houston’s present limitations. Houston App. Tab 1 (RR 5/305-06); Houston
App. Tab 2 (CR 183-86, 189-90, 192-93). Not surprisingly, this sort of
theorizing without concrete supporting data is suspect. See, e.g., Plunkett v.
3 To justify Dr. Gomez’s non-reliance on medical writings, Christus cites its orthopedic expert’s testimony that “[t]here are no papers written on axillary artery injury in total arthroplasty.” RR 3/279; Christus Brf. 34. But this testimony does not establish that there is no literature on nerve damage related to axillary artery injuries in other settings, such as accidents or other procedures.
30 Conn. Gen’l Life Ins. Co., 285 S.W.3d 106, 116-17 (Tex. App. – Dallas
2009, rev. denied) (expert’s theory that mold must have contaminated
plaintiffs’ personal property incompetent proof of causation given absence
of supportive data); Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 89
(Tex. App. – El Paso 2007, rev. denied) (“there is no evidence that what the
doctor believed could have happened to [plaintiff] actually did happen”).
When Dr. Gomez’s “subjective interpretation” of Houston’s outcome is
discounted, little else underlies his testimony.
Lastly, Christus claims that Dr. Gomez’s method in this case mirrors
how he practices medicine. Christus Brf. 34-35. But the sixth Robinson
factor does not support his opinion either because, as discussed more fully
below, he does not actually treat injuries like Houston’s. He is neither a
neurologist nor an orthopedist. Houston App. Tab 2 (CR 183-84).
Whatever method he devised to conclude that some unknown portion of
Houston’s disability was caused by nerve damage during surgery does not
derive from his medical practice, since he does not treat nerve or hand
conditions. See Robinson, 923 S.W.2d at 559 (“opinions formed solely for
the purpose of testifying are more likely to be biased toward a particular
result”).
31 The Robinson factors therefore confirm that Dr. Gomez’s opinion is
unreliable. Fully aware of this, Christus falls back on Gammill’s allowance
of opinion testimony based on the expert’s professional experience. Christus
Brf. 24-26, 35. But experts ordinarily should meet the standards enunciated
in both Robinson and Gammill: “[I]n very few cases will the evidence be
such that the trial court's reliability determination can properly be based only
on the experience of a qualified expert to the exclusion of factors such as
those set out in Robinson, or, on the other hand, properly be based only on
factors such as those set out in Robinson to the exclusion of considerations
based on a qualified expert's experience.” Whirlpool Corp., 298 S.W.3d at
638. Indeed:
If courts merely accept “experience” as a substitute for proof that an expert's opinions are reliable and then only examine the testimony for analytical gaps in the expert's logic and opinions, an expert can effectively insulate his or her conclusions from meaningful review by filling gaps in the testimony with almost any type of data or subjective opinions.
Id. at 639. Thus, Dr. Gomez’s inability to satisfy the test in Robinson alone
supports the trial court’s decision to exclude his testimony.
ii. Dr. Gomez’s Opinion Also Flunks the Gammill “Experience” Test
Nor is this the rare case where experience alone can validate an
expert’s opinion. Dr. Gomez’s view, based on his general understanding of
32 anatomy, that nerves are located near the axillary artery may be
unobjectionable as far as it goes. Houston App. Tab 1 (RR 5/312-13) (Dr.
Gomez permitted to discuss general principles of anatomy). But his further
opinions that Dr. Holt must have damaged adjacent nerves while puncturing
or tearing the axillary artery and that this injury gave rise to some
unknowable portion of Houston’s current physical limitations and symptoms
cannot be grounded in his clinical experience. See Whirlpool Corp., 298
S.W.3d at 647 (“each material part of an expert's theory must be reliable”).
In the first place, Dr. Gomez does not actually have any experience
with nerve damage resulting from shoulder replacement surgery, or even
with the axillary artery more generally. Houston App. Tab 2 (CR 183-84,
193). He explained this gap in his knowledge by claiming that such injuries
are rare, though Christus’ other expert, an orthopedic surgeon, has seen it.
Id. (CR 183); RR 3/239. Never having witnessed the nerve damage he
believes occurred, Dr. Gomez could not explain the mechanism of the
supposed nerve damage, or what actually happened to the nerves. Houston
App. Tab 2 (CR 195, 211). In fact, the one person who did see Houston’s
nerves – Dr. Martin, while performing the bypass graft – reported that he
saw no gross abnormalities, such as severing or cutting. RR 5/19, 27.
Christus claims that Dr. Gomez could opine about how nerves “react when
33 they are damaged during a surgical procedure,” Christus Brf. 26, but that is
exactly where his experience falls short.
In fact, Dr. Gomez gave confused and contradictory testimony on
what nerves were even involved. First he said: “There’s the ulnar nerve, the
median nerve, the musculotaneous nerve. Without examining him, it’s hard
for me to tell how many of those were injured.” Houston App. Tab 2 (CR
190). Then he said: “I mean, the ulnar nerve for sure was injured.” Id. (CR
191). Then, asked what other nerves were injured, he repeated: “Without
examining him, it’s hard to know.” Id. But then he reverted to his first
answer: “I believe the median nerve, the ulnar nerve, the musculotaneous
nerves were injured.” Id. And later, after reviewing Houston’s nerve
conduction study, he said: “The radial nerve – I’m sorry. I guess it was the
radial nerve that had the majority of the injury.” Id. (CR 192). Finally, he
conceded that he was “not an expert” in the nerve conduction test. Id. (CR
196). This incoherence raises doubt about whether Dr. Gomez could give
any opinion at all about the nerves near the axillary artery.
Most importantly, as a vascular and cardiothoracic surgeon, he has no
experience with hand injuries and so could not opine about whether
Houston’s current symptoms and limitations are due to the presumed in-
surgery nerve damage. Whenever he was asked about what effects the
34 surgery might have had on Houston’s ultimate hand function, he disclaimed
knowledge because he is not an orthopedist. See, e.g., Houston App. Tab 1
(RR 5/321) (answering “That’s not my area of expertise” when asked
whether Houston’s inability to grip was caused in-surgery nerve damage);
Houston App. Tab 2 (CR 195) (responding “I’m not an orthopedic
specialist” when asked about the mechanism by which Houston’s nerves
were damaged).
Opining in a generalized way that Dr. Holt’s surgery must have
resulted in nerve damage without being able to relate that damage to specific
aspects of Houston’s present disability fails to complete the necessary chain
of causation from the act that produces injury to the final result and
accompanying damages. See Texarkana Mem. Hosp., 946 S.W.2d at 838
(causation requires “proof that establishes a direct causal connection
between the damages awarded, the defendant’s actions, and the injury
suffered”). In other words, there is an analytical gap between the data Dr.
Gomez cites – assumed but unverifiable and unspecified nerve damage – and
the opinion rendered: that Dr. Holt’s act of damaging the nerves during
surgery yielded Houston’s eventual disability. See Gammill, 972 S.W.2d at
726.
35 Dr. Gomez’s lack of experience also precluded his opining about how
much of Houston’s condition is attributable to nerve damage from any cause
versus muscle damage: “I’m not an expert as far as nerve and muscle. And
how much of his function is due to loss of nerve versus due to loss of muscle
function or muscle capacity, I can’t comment on.” Houston App. Tab 2 (CR
201); see also id. (CR 190) (“I’m not a hand expert or a muscle expert, but
some of the contractures and so forth that I think he has now are possibly
due to those muscle injuries”), id. (CR 200). Yet any part of Houston’s
current condition that stems from muscle damage cannot be attributed to
supposed nerve damage during surgery. As with his inability to distinguish
between nerve damage caused by the surgery and nerve damage from
ischemia, the fact that Dr. Lopez cannot say what aspects of Houston’s
disability stem from muscle trauma as opposed to nerve damage renders his
causation opinion meaningless.
Three decisions illustrate how an expert’s clinical inexperience with
the plaintiff’s condition can result in exclusion of his causation opinion
under Gammill. In Wiggs v. All Saints Health Sys., plaintiff offered the
testimony of two experts to show that hypertension and blood loss during
back surgery caused his ischemic optic neuropathy (“ION”), resulting in
blindness. See 124 S.W.3d 407, 409 (Tex. App. – Ft. Worth 2003, rev.
36 denied). Their opinions were based on their claimed experience with ION,
and the plaintiff relied on Gammill to support admissibility. See id. at 412-
413. The first expert, an anesthesiologist, relied on his care of over 7,000
patients during surgery – but only one of his cases “may have had” ION,
only 1% of his surgeries were spinal cases, he had no training regarding ION
or its causes, he had never treated or diagnosed ION, and he had not
authored any papers about it. Id. The second expert, an ophthalmologist,
had only diagnosed 40 post-surgical cases of ION and also lacked special
training in the condition or its causes. See id. at 413. The court of appeals
upheld the trial court’s summary judgment based on the absence of valid
causation evidence:
Certainly, if an expert is primarily depending on his experience to support his opinion, he would have to have seen it more than once…
In summary, the doctors’ experience and training in their respective fields and the medical literature did not form a reliable basis for their opinions as to the cause of Mr. Wiggs’s post-operative vision loss. When the bases for the experts’ opinion are unreliable, their opinions are also unreliable.
Id. at 412-14 (quotation and parenthetical omitted).
Bartosh v. Gulf Health Care Ctr. – Galveston, is analogous. See 178
S.W.3d 434 (Tex. App. – Houston [14th Dist.] 2005). There, appellant
claimed that fire ant bites caused her elderly mother’s decline and death.
37 See id. at 441-43. Her expert was a family physician and geriatric expert
who learned about fire ants in medical school and had treated 20-30 patients
for bites. See id. at 442. Because the expert lacked experience treating older
patients with ant bites, however, and none had experienced the effects
suffered by appellant’s mother, his opinion was invalid and properly
excluded. See id. at 442-43; see also State Farm Lloyds v. Mireles, 63
S.W.3d 491, 499 (Tex. App. – San Antonio 2001) (construction expert’s
testimony unsupported under Gammill where he relied on his experience but
knew of only one other similar case of foundation damage).
This case closely resembles Wiggs, Bartosh and Mireles. Christus
relies on Gammill and cites Dr. Gomez’s experience as the main basis for his
opinion, but a closer look at his background shows only passing exposure to
the conditions and medical issues at the heart of this case. Having never
once encountered an axillary artery injury or associated nerve damage, he
lacks even the single instance of familiarity boasted by the anesthesiologist
in Wiggs and the construction expert in Mireles, let alone the wider
experience possessed by the ophthalmologist in Wiggs or the geriatric
38 specialist in Bartosh. As in those cases, his experience-based opinion on
causation was correctly kept from the jury.4
Christus notes that Houston experienced considerable blood loss
during the procedure. See Christus Brf. 37-38. While this may indicate a
serious injury to the axillary artery, it says nothing about whether adjacent
nerves were affected, let alone the extent to which any nerve damage
affected his current condition. To dramatize the extent of the injury,
Christus repeatedly asserts that Houston’s axillary artery was “sever[ed],”
Christus Brf. 38, when the parties actually disputed how large any hole in
Houston’s artery was, whether it was punctured or torn, and so on. Compare
RR 3/138-39 (“a small pinhole tear”), 5/238 with RR 5/28-29 (larger).
Christus also claims that “[e]ven Plaintiff’s own orthopedic surgery expert
testified that Mr. Houston’s inability to move his arm/hand after the surgery
was an indicia of a nerve injury,” Christus Brf 38, but Houston’s expert said
only that this was “possible,” and that “the likelihood that the injury was the
product of local trauma seems quire remote.” RR 5/277-78.
4 Christus discusses Rehabilitative Care Sys. of Am. v. Davis, 43 S.W.3d 649 (Tex. App. – Texarkana 2001) and State Offc. of Risk Mgmt. v. Trujillo, 267 S.W.3d 349 (Tex. App. – Corpus Christi 2008), Christus Brf. 23-24, but neither involves experts who relied primarily on their backgrounds or were challenged for lack of relevant experience. Nor are their facts similar to those here. In Trujillo, the substance of the opinion was not contested at all. See 267 S.W.3d at 354-55.
39 Christus further points out that Houston never reported regaining
sensation or movement in his hand after Dr. Holt’s operation. Christus Brf.
38. The evidence on this point is conflicting at best; a nurse documented
that Houston had improved movement in his fingers on the morning after the
surgery and could flex. RR 3/243, 4/114-16; Def. Exh. 1 at p.
Christus000073. Moreover, Christus points out that effects from ischemia
could have started as soon as six hours after the surgery, Christus Brf. 39,
and Houston would not have regained mobility earlier because his anesthesia
(the interscalene nerve block) hadn’t worn off yet. RR 3/101-02, 211; Def.
Exh. 5. Thus, if Houston never regained mobility in his hand after the
surgery, it could be attributable to the anesthesia followed by ischemia rather
than any nerve damage that occurred in surgery. Id. Since Dr. Gomez
cannot allocate between these two possibilities, his causation opinion is
invalid even if nerve damage is one option. See Point II(A), supra. Nor did
Dr. Gomez connect Houston’s inability to move his hand immediately after
the surgery to the specifics of his current condition. RR 5/321 (“That’s not
my area of expertise”).
Christus points again to Constancio as an example of a doctor basing
medical causation testimony on his clinical experience. Christus Brf. 31-33.
The expert in Constancio opined that giving morphine, Phenergan and
40 Ativan together led to an ultimately fatal “respiratory event.” See 2012 WL
1948345 at ** 1, 3. The expert testified that he prescribed these drugs “on a
regular basis” and “was familiar with published information on them.” Id. at
* 5. He taught use of the drugs to residents and based his opinion in part on
medical literature. Id. at ** 6-8, 13. By contrast, Dr. Gomez has never
treated or even witnessed the nerve injury he claims Houston suffered, and
he does not rely on medical literature to support his theory. And in
Constancio, both sides’ expert agreed with the challenged expert’s
methodology, which is far from the case here. Id. at * 12. Constancio only
illustrates why Dr. Gomez’s opinions lack foundation.
In sum, Dr. Gomez’s limited experience in the required subjects
cannot support the causation opinion he wanted to offer, and there is an
analytical gap between the data he does rely on and the testimony Christus
intended to offer.
C. Dr. Gomez Was Not Qualified to Opine on Causation
Exclusion of Dr. Gomez’s causation opinion was also appropriate
because he was unqualified to give it. For the same reasons, discussed
41 above, that his opinion is not sufficiently supported by his experience, he
was also unqualified to testify as an expert under TEX. R. EVID. 702.5
Proponents of expert testimony bear the burden of demonstrating the
expert’s qualifications. See Broders v. Heise, 924 S.W.2d 148, 151 (Tex.
1996). “What is required is that the offering party establish that the expert
has ‘knowledge, skill, experience, training, or education’ regarding the
specific issue before the court which would qualify the expert to give an
opinion on that particular subject.” Id. at 153 (quoting TEX. R. EVID. 702).
Although a physician need not practice in precisely the same specialty as the
medical area involved, see Keo, 76 S.W.3d at 732, generalized medical
knowledge is not enough: “given the increasingly specialized and technical
nature of medicine, there is no validity, if there ever was, to the notion that
every licensed medical doctor should be automatically qualified to testify as
an expert on every medical question.” Broders, 924 S.W.2d at 152; accord
Pack v. Crossroads, Inc., 53 S.W.3d 492, 506 (Tex. App. – Fort Worth
2001, rev. denied).
5 Houston’s pretrial motion to exclude focused on Dr. Gomez’s opinion’s inadequate foundation, but it also mentioned his lack of relevant qualifications. CR 173 (¶¶ 30-31). And when counsel renewed the motion at trial, he specifically argued that Dr. Gomez “does not have the qualification to testify in this case.” RR 5/294. In any event, this Court may uphold the exclusion of Dr. Gomez’s opinion on any ground in the record. See In re O’Quinn, 355 S.W.3d 857, 862 (Tex. App. – Houston [1st Dist.] 2011, mandamus den.).
42 As discussed above, Dr. Gomez lacks the qualifications to inform
jurors about causation in this case. He might be capable of opining
generally about the relevant anatomy, and the trial court appeared to have no
objection to that sort of testimony, assuming its relevance. RR 5/308-09.
But Dr. Gomez’s own testimony confirmed that he is not qualified to opine
on what caused Houston’s current disability because he lacks the necessary
familiarity with axillary artery injuries; which nerves might have been
affected; how the nerves might have been damaged during the procedure;
and, most importantly, what effects in-surgery nerve damage might have
produced on Houston’s hand. See Point II(B)(ii), supra.
Courts have not hesitated to disqualify experts who, like Dr. Gomez,
invoked their professional experience but whose backgrounds failed to
supply the necessary support. See, e.g., Spin Doctor Golf, Inc. v.
Paymentech, L.P., 296 S.W.3d 354, 360-61 (Tex. App. – Dallas 2009, rev.
denied) (expert’s experience in valuing businesses and marketing did not
qualify him to opine on lost profits); In re Windisch, 138 S.W.3d 507, 512-
14 (Tex. App. – Amarillo 2004) (radiologist lacked background to opine
about standard of care governing treatment for brain tumors); Pioneer
Natural Resources USA, Inc. v. W.L. Ranch, Inc., 127 S.W.3d 900, (Tex.
App. – Corpus Christi 2004, rev. denied) (expert in vertical drilling may not
43 opine about issues related to horizontal drilling); Pack, 53 S.W.3d at 506-07
(nurse and nursing instructor unqualified to opine on standards of care for
nursing home). Therefore, just as Dr. Gomez’s opinion is invalid given his
inexperience in the necessary subjects, he is also unqualified to opine on
those topics under Rule 702.
III. The Final Judgment is Correct
Christus argues that the final judgment is defective because it fails to
account for Dr. Holt’s settlement credit, miscalculates prejudgment interest,
and requires periodic payment of too small a portion of the award. Christus
Brf. Issue 2. These arguments are without merit.
A. The Trial Court Correctly Accounted for the Settlement Credit
Christus contends first that the trial court erred in applying the
$99,999 settlement credit by deducting it from the award and then further
reducing noneconomic damages down to $250,000, rather than the other
way around. See Christus Brf. 40-45. The Texas Supreme Court faced a
similar situation in Edinburgh Hosp. Auth. v. Trevino, 941 S.W.2d 76 (Tex.
1997). The jury there awarded $750,000 against a municipal hospital that
was subject to the $250,000 cap on damages in TEX. CIV. PRAC. & REM.
CODE § 101.023. See id. at 81. Before trial, the plaintiffs also settled with
the responsible doctor for $44,000. See id. The trial court applied the
44 settlement credit and then reduced the resulting award to the $250,000 cap.
See id. As in this case, the hospital argued for reversing the process. See id.
The Supreme Court rejected this position and held:
Thus, while the dollar amount of a settlement must be reduced from the verdict under the “one satisfaction” rule, the settlement does not affect the maximum dollar amount to which the government has agreed to waive its immunity. A settlement with one tortfeasor should thus be offset before the verdict against the governmental unit is reduced to the statutory maximum. A contrary rule, taken to its logical end, would completely bar recovery against a tortfeasing municipal hospital authority when a plaintiff settles with another defendant for more than the hospital authority's damages cap. Such a result cannot be the intent of the Legislature.
Id. at 82 (citation omitted, emphasis in original).
The same analysis applies here. The Legislature’s limit on
noneconomic damages against healthcare providers mirrors its cap on
awards against governmental units. Plaintiffs should therefore be allowed to
recover such damages to their statutory limit, as in cases under the Tort
Claims Act. Otherwise, as with § 101.023, the cap could completely bar
recovery against a liable hospital when the award is for noneconomic
damages alone and a settlement with another defendant exceeds the cap.
“Such a result cannot be the intent of the Legislature.” Id.
This reasoning has been accepted by at least one trial court that
adjudicated a case identical to this one. In Hogue v. Columbia Med. Ctr. of
45 Las Colinas, the 193rd district court followed Edinburgh Hosp. Auth. and
applied the settlement credit before the cap on noneconomic damages in a
medical malpractice case: “Finding no holding to the contrary [of Edinburgh
Hosp. Auth.] regarding the 4590i, § 11.02(a) statutory cap and both being the
subject of statutes, the Court holds that the settlement credits applicable in
this case should be applied before the statutory caps are applied to the
damages.” Houston App. Tab 3 (2002 WL 33962000, No. DV-99-01417-L
(193rd Dist. Ct. – Dallas County, July 24, 2002)).
Christus offers two rationales for its approach to the settlement credit.
First, it stresses certain language in TEX. CIV. PRAC. & REM. CODE §
33.013(b): “each liable defendant is… jointly and severally liable for the
damages recoverable by the claimant under Section 33.012 with respect to a
cause of action.” Christus Brf. 41, 43 (emphasis in original). This section
establishes the conditions for joint and several liability; it has nothing to do
with how courts should apply settlement credits.
Second, Christus argues that Chapter 74 “was designed to limit a
health care provider’s civil liability for damages,” that the hospital
effectively received no settlement credit, and that the Legislature must have
intended the court to apply the credit as Christus prefers. Id. at 44-45. The
hospital cites no case law or legislative history to support this contention.
46 See id. Christus reaped the benefit of the Legislature’s intent to cap
Houston’s noneconomic damages, but there is no indication that the cap
must be applied before a settlement credit. On the contrary, Edinburgh
Hosp. Auth. holds that the Legislature would not have intended a settlement
credit and a damages limit to work in tandem to reduce a plaintiff’s recovery
below the statutorily mandated ceiling, as Christus proposes.
The Court should follow Edinburgh Hosp. Auth. and Hogue and
affirm the judgment.
B. The Court Correctly Calculated Prejudgment Interest
Next, Christus complains that the trial court incorrectly calculated
prejudgment interest. Christus Brf. 45-47. The trial court assessed
prejudgment interest on the full amount of past damages, but Christus claims
“[t]he proper and more fair” method would be to apply a formula whereby
the percentage of non-economic damages representing past damages is taken
of capped non-economic damages, $250,000, instead of the actual amount of
non-economic damages awarded by the jury. See id. at 46-47. As with its
argument on the settlement credit, it cites no case law or other authority
endorsing this novel approach. See id.
Christus’ proposal is nothing more than a way to charge prejudgment
interest on capped damages rather than those selected by the jury, a notion
47 rejected by the Seventh Court of Appeals in Cresthaven Nursing Residence
v. Freeman, 134 S.W.3d 214 (Tex. App. – Amarillo 2003). The Cresthaven
court stressed that Texas law links prejudgment interest to the jury’s award,
not the judgment. Id. at 222. While the provision the court considered was
later repealed, the Finance Code continues to tie prejudgment interest to
juries’ awards rather than judgments issued later by courts. See TEX. FIN.
CODE § 304.1045 (“prejudgment interest may not be assessed or recovered
on an award of future damages” (emphasis added)). The court concluded:
The legislature did not provide that prejudgment interest is to be awarded on the amount of past damages included in the judgment, but on the amount awarded by the trier of fact. This language implies that prejudgment interest is applicable on the full amount of past damages found by the jury prior to the application of the liability cap, which determines the amount for which the defendant is liable in the judgment.
134 S.W.3d 222. This court should likewise reject the formula Christus
invents from whole cloth and affirm the judgment’s calculation of
prejudgment interest.
C. The Court Did Not Abuse its Discretion in Deciding What Portion of Damages Christus Can Pay Periodically
Lastly, Christus argues that the district court should have ordered all
damages awarded by the jury for future medical care to be paid over ten
years pursuant to TEX. CIV. PRAC. & REM. CODE § 74.503(a). Christus Brf.
48 47-49. It also contends that the court should have permitted it to
periodically pay all damages for loss of future wages and household services
under § 74.503(b). Id. at 49-50. The court did not abuse its discretion in
applying § 74.503 to the facts of this case.
Section 74.503(a) provides that “the court shall order that medical,
health care, or custodial services awarded in a health care liability claim be
paid in whole or in part in periodic payments rather than by a lump-sum
payment” upon a defendant’s request. In the district court, Christus asked
that all future medical care damages be paid over ten years, while Houston
sought periodic payment of only $50,000 of these damages. CR 584, 683.
The court split the difference and permitted Christus to pay $105,000 of
future medical care damages periodically, leaving $200,000 to be paid in a
lump sum after entry of judgment. Christus App. Tab A (CR 882-83).
First, Christus stresses the Legislature’s use of the word “shall” in
74.503(a) to imply that the district court had to accept its request. Christus
Brf. 47. But the statute expressly gives the trial court discretion to order
periodic payment of these damages “in whole or in part.” TEX. CIV. PRAC. &
REM. CODE § 74.503(a); see also Lee v. United States, 765 F.3d 521, 529 (5th
Cir. 2014) (court “must order periodic payments for at least a portion of the
damages for medical care” (emphasis added)). The court was therefore
49 empowered to order immediate payment of some portion of damages
awarded for future medical care.
Christus also complains that the court’s decision conflicts with the
evidence at trial. Christus Brf. 48. The district court determined that
Houston should receive $200,000 for future medical care now “by
determining from the evidence that Plaintiff is likely to need a rounded off
$140,000 in the immediate future, together with an allocation of the portion
of attorneys’ fees which Plaintiff will have to pay on the award.” Christus
App. Tab A (CR 882-83). Using calculations prepared by his expert life
care planner, Houston demonstrated that approximately $142,653.74 in
medical costs would be required in fewer than six years, let alone the ten
urged by Christus. CR 683; Pl. Exh. 12.
For example, Houston requires three surgeries – two immediately and
one when he turns 55 in one and a half years – totaling $39,652.20. RR
6/56-58; Pl. Exh. 12.6 Over the next two years alone he will need $18,000 in
post-surgical physical therapy, $6,000 for psychological counseling, $1,200
in vocational evaluation, and $740 for a post-operative home health aid. RR
6/49-53; Pl. Exh. 12. Other care required over the next six years includes
6 When Houston’s life care planner completed Houston’s plan on July 13, 2011, Houston was 49 years old. RR 6/30; Pl. Exh. 12. He predicted Houston would need one of his surgeries, the bypass vascular graft, when Houston turns 55. Pl. Exh. 12. Thus, that surgery is now needed in one and a half years.
50 various medications ($35,181.36), rehabilitative services ($19,350.42),
diagnostic studies ($8,916.60), physician care ($5,484.00), and essential
services ($7,200). See id. The district court therefore had an evidentiary
basis for concluding that approximately $140,000 in medical costs would be
needed on a faster schedule than that proposed by Christus. See In re
K.R.P., 80 S.W.3d 669, 674 (Tex. App. – Houston [1st Dist.] 2002, rev.
denied) (“There is generally no abuse of discretion if some evidence
supports the decision”).
Despite this evidence, the hospital attacks the court’s decision because
Houston “had not taken advantage of any medical treatments recommended
and available to him, such as seeing a pain management specialist, taking
prescription pain medications and/or antidepressants, or engaging in
psychological counseling.” Christus Brf. 48. Houston’s life care planner
testified, however, that Houston will likely need these sorts of services and
medicines in the future even if he had not used them to date. RR 6/61-62.
For example, the need for pain management, pain medications,
antidepressants and psychological counseling grow over time as the patient
has to deal with serious pain on a daily basis. RR 6/52 (“suppose every
single day you wake up and the back pain is still there and still there and still
there. Well, that kind of pain starts to wear on you”). Moreover, the life
51 care planner saw Houston in 2011, see Pl. Exh. 12; by the time Houston
testified at trial in October 2013, he was taking pain medication six times
daily. RR 6/96. The court was not required to defer these kinds of
expenses, which make up a relatively small part of the $140,000 in any case,
simply because Houston had not yet availed himself of them in 2011.
Christus also argues that Houston will not need his three surgeries
until “many years into the future,” when his bypass graft fails. Christus Brf.
48-49. Two of the three surgeries – the tendon transfer and right carpel
tunnel release – are to his hands and have nothing to do with his bypass, and
Houston’s life care planner testified that they are needed now. RR 6/56-57;
Pl. Exh. 12. As for the bypass procedure, Christus argues that it does not
remedy a compensable injury because the original bypass in 2009 fixed the
non-negligent axillary artery rupture. Christus Brf. 49. Because Christus
did not previously object to this expense on this ground, the argument is
waived. See CR 907 (Christus’ objection to second bypass surgery expense
in trial court). In any case, this is an argument against including the expense
at all – not against when it is paid. The jury awarded $305,000 in future
medical care, and Christus does not argue that there was insufficient
evidence supporting this figure regardless of whether some portion may
52 ultimately go toward medical needs beyond those directly caused by the
hospital’s negligence.
Christus also claims that the court further abused its discretion by not
requiring periodic payment of other future damages under subsection (b).
Christus Brf. 49-50. This section is entirely discretionary. See TEX. CIV.
PRAC. & REM. CODE § 74.503(b) (court “may order that future damages
other than medical, health care, or custodial services” be paid periodically
(emphasis added)). Christus asserts that it should not have to pay damages
for loss of household services and lost wages now because, it claims,
Houston has not yet suffered these losses. Christus Brf. 50.
Houston’s ex-wife testified that they “had to pay people” to do
housework because of Houston’s limitations. RR 3/63. Houston testified
that he would probably have to stop work within three years. RR 6/102-03.
To the degree Christus complains about other non-medical injuries, such as
pain and suffering, physical impairment and disfigurement, there was also
testimony that Houston had suffered these harms too. RR 3/59-63, RR6/95-
108. The trial court was permitted to credit this evidence even if there was
conflicting proof in the record. See In re K.R.P., 80 S.W.3d at 674 (“an
abuse of discretion does not occur when the trial court bases its decision on
conflicting evidence”).
53 PRAYER
The Court should affirm the district court’s judgment.
February 19, 2015 Respectfully Submitted,
Martin J. Siegel /s/ Martin J. Siegel Texas State Bar No. 18342125 LAW OFFICES OF MARTIN J. SIEGEL, P.C. Bank of America Center 700 Louisiana St., Suite 2300 Houston, TX 77002 Telephone: (713) 226-8566 Martin@siegelfirm.com
David Hodges Gabriel Assaad KENNEDY HODGES, LLP 711 W. Alabama Street
Houston, Texas 77006
Telephone: (713) 523-0001 Dhodges@kennedyhodges.com
Attorneys for Appellee Jay Houston
54 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Appellee’s Brief and
Appendix was served on counsel of record for Appellant on February 19,
2015 by electronic means in accordance with this Court’s rules on electronic
filing:
Erin Lunceford Sprott Newsom Lunceford Quattlebaum Messenger 2211 Norfolk, Suite 1150 Houston, TX 77098 Lunceford@sprottnewsom.com
Counsel for Appellant
/s/ Martin J. Siegel Martin J. Siegel
55 CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the word limit of TEX. R. APP. P.
9.4(i)(2)(B) because this brief contains 11,924 words, excluding the parts of
the brief exempted by TEX. R. APP. P. 9.4(i)(1).
Dated: February 19, 2015
56 APPENDIX INDEX
Tab:
Excerpts from Argument on Motion to Exclude Dr. Gomez ......................... 1
Excerpts from Dr. Gomez's Deposition ......................................................... 2
Hogue v. Columbia Med. Ctr. ofLas Colinas, 2002 WL 33962000, No. DV-99-01417-L (193rd Dist. Ct. — Dallas County, July 24, 2002)........................................ 3 TAB 1 1
1 FIRST COURT OF APPEALS
2 O1-14-00399-CV REPORTER'S RECORD 1st COURT OF APPEALS 3 VOLUME 5 OF 8 VOLUMES HOUSTON,TEXAS 0130610/6/201410:10:47 AM 4 TRIAL COURT CAUSE N0. 2011- CHRISTOPHER A. PRINE Clerk 5 JAY HOUSTON IN THE DISTRICT COURT
6 vs. ) HARRIS COUNTY, TEXAS
7 CHRISTUS HEALTH GULF COAST, D/B/A CHRISTUS 8 ST. JOHN HOSPITAL 55TH JUDICIAL DISTRICT
12 TRIAL ON MERITS
15 On the 27th day of September, 2013, the following
16 proceedings came on to be held in the above-titled and
17 numbered cause before the Honorable Jeff Shadwick, Judge
18 Presiding, held in Houston, Harris County, Texas.
19 Proceedings reported by computerized stenotype
20 machine.
Gina Wilburn, CSR Official Court Reporter 55th District Court 304
Raymond M. Vance, M.D. - September 27, 2013
1 proof that Mr. Houston's body is identical to what's in
2 the picture. There is no identical proof, there is no
3 proof, that there is any type of support -- and Martin
4 exposed the nerves.
5 THE COURT: Either I've got stupid or your
6 guys are horribly under explaining this, so let's put
7 him on the stand and let me hear him?
8 MR. HODGES: Can we take him on voir dire?
9 THE COURT: Yeah. Now, do you want to
10 take a break or put him on right now?
11 MR. ASSAD: Your Honor --
12 MR. HODGES: Put him on.
13 MS. LUNCEFORD: The issue is -- he has
14 to -- I know they told me they were going to go this, he
15 has to be off today.
16 THE COURT: Let's ao fast.
17 (Off record discussion was had.)
18 Q. (BY MS. LUNCEFORD) Dr. Gomez, what is your
19 background?
20 A. I'm a cardio vascular and thoracic surgeon.
21 Q. And what is the difference between a cardio
22 vascular and thoracic surgeon?
23 A. A vascular surgeon can't do any operations on
24 the heart.
25 Q. And do you as a cardio vascular thoracic
Gina Wilburn, CSR Official Court Reporter 55th District Court 305
1 surgeon to operations on other vascular structures in
2 the body?
3 A. Yes.
4 THE COURT: I'm not concerned about this
5 part of the foundation.
6 MS. LUNCEFORD: You're not?
7 THE COURT: I want to know the context to
8 the issues in front of the jury.
9 Q. (BY MS. LUNCEFORD) Part of your testimony in
10 this case is that this nerve injury to Mr. Houston
11 happened at the time of the original laceration of the
12 artery by Dr. Holt, correct?
13 A. Yes.
14 Q. Explain to Court what the basis of that opinion
15 is. How do you believe that on why -- what is your
16 foundation?
17 A. It's based on the anatomy.
18 Q. Okay. Do you need the anatomy chart or
19 whatever?
20 A. Then -- the axillary artery where it was
21 injured, there is multiple nerves. The major branches
22 of the brachial plexus are intimately involved with the
23 axillary artery at that point where it was injured. And
24 so to injure the artery, you almost invariably injure
25 multiple nerves.
Gina Wilburn, CSR Official Court Reporter 55th District Court 306
1 Q. You've read Dr. Vance's testimony, and I will
2 represent to you that Dr. Martin testified this morning
3 that he believes that Mr. Houston's injury was mostly --
4 injury caused by ischemia from the lack of blood flow
5 after the thrombosis cut off the blood flow. You
6 understand that that's the opposing side's contention?
7 A. Yes.
8 Q. Explain why you don't believe that's true?
9 A. I don't believe that's true, because of where
10 the injury occurred and the artery. Like I stated
11 earlier, there's is multiple nerves, and it's almost
12 virtually impossible to injure an artery without -- with
13 a significant injury that the patient had without also
14 involving the nerves in that area. And the patient
15 since the moment of the operation had no function in
16 that extremity, it's reasonable to ascertain that he had
17 nerve injury since the time of his first surgery.
18 Q. Dr. Martin this morning said that the base --
19 the reason that he knew that it wasn't a nerve injury
20 was because after he restored the vascular artery to his
21 arm, that it immediately pinked up and he was able to
22 move his fingers. Why is that not a reasonable
23 explanation?
24 A. Because -- just 'cause a hand returned blood
25 flow and you can see that it went from dusty to pink,
Gina Wilburn, CSR Official Court Reporter 55th District Court 307
Raymond M. Dance, M.D. - September 27, 2013
1 that's not an assessment of the nerve function of that
2 extremity. And from the injuries that he's had from the
3 initial operation, he never had complete regain -- he
4 did not retain all of his nerve function from the
5 initial surgery. And so there almost impossible to
6 determine what part was due to the injury during the
7 first surgery and what was due to ischemia. It's --
8 it's impossible to know.
9 Q. How would it ever be possible to know -- I
10 mean, would it ever be possible?
11 A. No.
12 Q. So part of your opinion is there is no way to
13 separate out whether the nerve injury was completely
14 done at the time of the first surgery due to a nerve
15 injury or was a combination of a nerve injury of the
16 first surgery and ischemia caused by the thrombosis?
17 A. Right.
18 MS. LUNCEFORD: I don't have anything
19 further.
20 THE COURT: Let me ask you a question,
21 then. So what am I to make of that last part? Is -- is
22 his testimony that he's bringing -- that he is
23 challenging the credibility of other witnesses?
24 MS. LUNCEFORD: Yes.
25 THE COURT: Because -- because I'm not
Gina Wilburn, CSR Official Court Reporter 55th District Court 308
1 sure -- we're talking about from an evidence standpoint,
2 not from a professional standpoint.
3 THE WITNESS: Sure.
4 THE COURT: I'm not sure he has said
5 anything when he has said for his on account, he can't
6 tell what happened.
7 MS. LUNCEFORD: Well, no --
8 THE COURT: So that all by itself is -- it
9 doesn't really meet the standards of opinion testimony
10 because it's not even an opinion.
11 MS. LUNCEFORD: Well, no. It is an
12 opinion because he first gave the opinion that he
13 thought that the nerve injury occurred at the time
14 because of what happened with Mr. Houston's hand and
15 arm.
16 THE COURT: Yeah, so far so good on that.
17 And the fact -- the fact when the blood returned, the
18 motion also returned -- didn't sound quite right when
19 he -- but he's the doctor and I'm not, but it didn't
20 sound quite right when he said, well, then you can't
21 attribute it to the blood. I wasn't sure I got that,
22 but it was -- it's the part after that that he says --
23 where he goes on to say and you can't say -- you cannot
24 allocate between events and percentages of what it is.
25 That's the part that's sounding like I'm not sure it
Gina Wilburn, CSR Official Court Reporter 55th District Court 309
1 comes in from an evidence standpoint.
2 MS. LUNCEFORD: Just that part about he
3 can't allocate between the two?
4 THE COURT: Yeah, because that part --
5 back to my comment, I'm the gatekeeper for opinion
6 testimony.
7 MS. LUNCEFORD: Sure.
8 THE COURT: But that right there is sort
9 of a non opinion.
10 MS. LUNCEFORD: Yeah.
11 THE CDURT: And that's why I pointed out.
12 It's usefulness might be in challenging the credibility
13 of people who might say otherwise.
14 MS. LUNCEFORD: And that's the reason.
15 When I asked him to review things, I asked him: That
16 was my question is: Can you tell whether the injury was
17 done the time of the original surgery? And it's based
18 on the anatomy and where the nerves are.
19 THE COURT: Right. But is he saying --
20 are you saying, I can't tell or those guys can't tell
21 and they shouldn't have said.
22 MS. LUNCEFORD: Well, I think -- he thinks
23 it happened at the time of the original surgery for
24 those reasons. And so, yes, he's disputing the fact
25 that they can say that it didn't.
Gina Wilburn, CSR Official Court Reporter 55th District Court 310
i THE COURT: All right. You guys see what
2 my problem is?
3 MR. ASSAD: That's what we're saying is
4 like he cannot -- he cannot -- I feel like standing up
5 when I talk, Your Honor.
6 THE COURT: Stand or sit. The jury's not
7 there. 8 MR. ASSAD: He cannot determine there is
9 no opinion as to -- as to whether or not it was -- he
10 can't allocate the percentage of whether it was ischemia
11 or was it nerve injury. And, therefore -- he doesn't
12 know what happened.
13 THE COURT: Yeah.
14 MR. ASSAD: He doesn't know what happened.
15 THE COURT: Right. Right. Right. I'm
16 with you on that, but now I'm trying to figure out in
17 terms of whether it's useful to the jury of whether or
18 not it's a comment on what the other experts have said
19 or it's just not admissible because it's not
20 foundational opinion testimony.
21 MR. HODGES: Under Rule 702. You hit the
22 nail on the head, Judge. He didn't come in for that
23 reason. It's not going to help the jury in determining
24 an issue of fact in this trial.
25 MS. L UNCEFORD: It is.
Gina Wilburn, CSR Official Court Reporter 55th District Court 311
1 THE COURT: But do -- I'll let him -- do I
2 let in the first part? Sounds like we're all having
3 trouble with the second part. The first part was, I'm a
4 doctor, I'm familiar with veins; therefore, I'm familiar
5 the nerves around veins.
6 THE WITNESS: Am I allowed to interject?
7 THE COURT: Let me work through it on my
8 lawyer brain first.
9 THE WITNESS: Okay.
10 THE COURT: And I know that when they've
11 done this sort of surgery, that the veins must have been
12 damaged and I attribute some of the damage to the
13 original surgery.
14 I was okay up until then. When you -- I
15 don't want to repeat myself as to the rest of it. Do
16 you drawn that line, also?
17 MR. HODGES: Yeah. I see. You're saying
18 there is two parts of it, and I think relative to second
19 part of it, clearly ought to come in, but as to first
20 part of it, still has to have an adequate foundation.
21 All right? And if it doesn't have an adequate
22 foundation, then it's not reliable, which means it's not
23 relevant. If it's not relevant, it does not come into
24 evidence. And in this case, okay, we have every single
25 doctor, every single doctor, except for Dr. Gomez
Gina Wilburn, CSR Official Court Reporter 55th District Court 312
1 respectfully, sir, saying that, no, this was due to
2 ischemia. This is an ischemic injury. And they all
3 supported their opinions on why, including Dr. Martin,
4 the vascular surgeon, the treater who opened up the arm,
5 looked at it, said the nerves were intact. This was a
6 vascular injury. And we know because he regained
8 color.
9 So, Dr. Gomez, not being a treater, not
10 being there, not visualizing the nerves, must have some
11 sort of foundation to give some peer-reviewed
12 literature, some scientific journal that says, hey, you
13 know what? When we've done this in the past, he's what
14 we found. Yet he comes here with none of that. Only a
15 contrary opinion to every single other expert in this
16 t~'L.Y~I
17 THE COURT: Well, I'm not sure it's fair
18 to say that he comes here with -- he comes here with an
19 M.D. and years of experience. This is the issue that we
20 talked about when it first came up is how much opinion
21 testimony can a doctor or, particularly, a specialist,
22 give about general principals simply by virtue of being
23 specialist in that area? And I'm -- I'm sort of willing
24 to have him talk about general principals within that
25 scope. That was where I thought I -- I drew the line,
Gina Wilburn, CSR Official Court Reporter 55th District Court 313
1 because he wants to come up and say this -- despite the
2 fact that I haven't seen this stuff, here's some general
3 principals and, of course, your counter is but
4 everything who has seen the patient disagrees. I don't
5 think that makes --
6 MS. LUNCEFORD: That goes to weight.
7 THE COURT: Yeah. That's weight, not
8 credibility. I don't think that makes his testimony
9 inadmissible as far as that goes.
10 MR. HODGES: Well, Judge, you know, the --
11 the case law, and we've cited in our brief, that
12 multiple cases have said, look, just because you have an
13 M. D. does not make your opinion reliable.
14 THE COURT: I agree with that.
15 MR. HODGES: That is not the position.
16 And they use the term lone wolf, and I think that is out
17 to explain what we have here. We have one doctor,
18 amongst many, who gives a lone wolf opinion without a
19 scientific literature to back it up. And he's giving a
20 opinion, contrary to if we want to look at the people -- 21 gold standard, the guy who visualized the nerves and
22 said, hey, there was no injury.
23 MS. LUNCEFORD: Didn't visualize the
24 nerves.
25 MR. HODGES: I don't see how it happens
Gina Wilburn, CSR Official Court Reporter 55th District Court 314
1 other wise is not going be helpful to this jury. It's
2 going to add to confusion because now the jury's left
3 with the task that this doctor cannot do himself, which
4 is, well, if I'm going to allocate, which they're going
5 be asked to do, between Dr. Holt and the nurses, how do
6 I figure out how much of it was Dr. Holt who severed the
7 nerves during the surgery versus the nurses not catching
8 a vascular injury? And he offers no help in that
9 regard.
10 MS. LUNCEFORD: Well, I argued or I told
11 them that it was our contention that it happened all at
12 the beginning of the first surgery. So that's we -- we
13 excluded the testimony from Vance where he tried to say
14 what percentage of it was due the nurses or to the
15 doctor, because they invades the province of the jury,
16 and I would agree with the Court that it does invade the
17 province of the jury for Dr. Gomez to say that you can't
18 tell which -- how much of it is due to the original and
19 how much is due to the ischemia. He can cross them on,
20 well, all of these other doctors have said it's ischemia
21 and why is it not? And he can talk about that.
22 THE COURT: I don't think the jury's being
23 asked to make that distinction anyways. The jury's
24 being asked to allocate between Hold and the nurses.
25 MR. ASSAD: This is causation.
Gina Wilburn, CSR Official Court Reporter 55th District Court 315
1 THE COURT: This goes to -- this goes to
2 simply how much you lay on Holt.
3 MS. LUNCEFORD: Exactly.
4 MR. ASSAD: Another thing, Your Honor,
5 another issue is, there is no deviations of standard of
6 care against Dr. Holt for the surgery. There is no
7 allegation. So this is all about causation. And
8 they're going to have to allocate causation as to what
9 was the cause by the lack of blood flow as compared to
10 what was caused by his, you know, theory that just
11 because the nerves are together. And he can't even
12 himself testify as to what of the damages were --
13 actually he testified that all of the damages from the
14 elbow to here were result of -- of --
15 MR. HODGES: Ischemia.
16 MR. ASSAD: -- ischemia. And he can't
17 even testify as to what damages, if any, were caused by
18 any type of nerve damage at the surgery.
19 MS. LUNCEFORD: That's not what he said.
20 MR. HODGES: Let's be clear here. We're
21 talking about the field of neurology. Not talking about
22 the field of cardio vascular surgery or cardio thoracic
23 surgery, or even vascular surgery. We're talking about
24 neurology here.
25 MS. LUNCEFORD: We're talking about nerve
Gina Wilburn, CSR Official Court Reporter 55th District Court 316
1 injuries that occur as a result of vascular injuries,
2 right.
3 MR. HODGES: It's neurology.
4 THE COURT: There is some cross
5 understanding there for sure.
6 MR. ASSAD: Dr. Martin manipulated the
7 artery, took it apart in a graft, and did not injury any
8 of the nerves around it, so it's possible to cut
9 arteries and not damage nerves.
10 THE COURT: I'm not going to argue the
11 medicine of it.
12 MR. ASSAD. I understand that, but --
13 THE COURT: I'm much more interested in
14 how does this assist the jury answering a question that
15 they're going to have.
16 MS. LUNCEFORD: Just so --
17 THE COURT: They're going to be asked --
18 what -- was there negligence by these two parties.
19 And -- and then if they say yes to more than one,
20 they're going be asked to allocate. So which -- which
21 question does this testimony go towards? It increases
22 the chances that the jury will find that Holt did
23 something inappropriate, right?
24 MS. LUNCEFORD: Right. And, in fact, just
25 to clarify. I don't want to misrepresent to the Court,
Gina Wilburn, CSR Official Court Reporter 55th District Court 317
1 my designation and Dr. Gomez's testimony during his
2 deposition is, as a vascular surgeon, while he hasn't
3 prepared this particular one, he gets called in with
4 vascular surgeon for significant blood loss all of the
5 time, and that as a surgeon he believes that it was a
6 breach of the standard of care to have not called a
7 vascular surgeon. And he's testified to that. And I
8 designated him to testify to that. That so directly
9 goes to Holt's percentage of negligence.
10 MR. ASSAD: Wait. Wait. Wait. He
11 testified that he has no opinions to -- during the June
12 8th surgery --
13 MS. L UNCEFORD: No.
14 MR. ASSAD: I have it. I can site it to
15 Court right now.
16 THE COURT: I wasn't under the impression
17 that anybody was claiming Holt erred during the surgery.
18 MS. LUNCEFORD: No. In his response. So
19 it's not the surgery itself. It's in fact the response
20 and Dr. -- Dr. Edwards said that, too.
21 THE COURT: What relevance is it that he's
22 going to testify that something happened during the
23 surgery?
Gina Wilburn, CSR Official Court Reporter 55th District Court 318
1 loss during the surgery.
2 THE COURT: He's going to get up here and
3 say there is no way that there couldn't have been nerve
4 damage during the surgery.
5 MS. L UNCEFORD: Right.
6 THE COURT: Must have been nerve damage
7 during the surgery. But during the surgery predates
8 any -- I mean, in the timeline, is prior to any
9 negligence. So what does it matter if that's what he's
10 going to say?
11 MS. LUNCEFORD: Well, because we still
12 have to get to the question of: Did the negligence, if
13 any, of the persons named below proximately cause the
14 injury in question? If the injury wasn't caused by
15 either party's negligence, because it was caused in the
16 surgery, his testimony is completely relevant. If it's
17 caused by the first surgery, but it's not negligence,
18 they can still answer "no" and "no". You see that's an
19 absolutely valid opinion. It is totally -- it is
20 totally helpful to the jury.
21 MR. ASSAD: That's not what he's saying.
22 THE COURT: So he's -- so if there is no
23 negligence, we stop. So the jury will have to find
24 there is some negligence, but what you want them to find
25 is that the damage doesn't flow from the negligence.
Gina Wilburn, CSR Official Court Reporter 55th District Court 319
1 MS. L UNCEFORD: Yes.
2 THE COURT: The damages flows from the
3 original surgery.
4 MS. LUNCEFORD: Exactly.
5 MR. ASSAD: Which is contrary to what he's
6 saying. Okay?
7 THE COURT: No. That is what he's saying.
8 MR. ASSAD: No. No. No. He's saying
9 that there is a vascular injury and ischemia caused
10 nerve --
11 THE COURT: He's also saying that there is
12 something done to the nerve during the surgery.
13 MR. ASSAD: Can't even allocate.
14 MR. HODGES: He can't -- he can't figure
15 it out.
16 MR. HODGES: Nobody could.
17 THE COURT: Ms. Lunceford, if he can't
18 allocate how much, then how can he offer the injury
19 anything for them to hang their hat on? They've gotten
20 a thought out there and no further guidance as to a
21 percentage.
22 MS. LUNCEFORD: Actually, I think we're
23 confusing things and maybe Dr. Gomez can help. The
24 injury to the forearm, as I recall what he was saying,
25 that that injury was to the muscles and nerves that part
Gina Wilburn, CSR Official Court Reporter 55th District Court 320
1 because of the swelling and the fasciectomy. We're
2 talking about the permanent nerve injury caused --
3 THE WITNESS: Radial nerves.
4 MS. LUNCEFORD: Is that not right?
5 THE WITNESS: Uh-huh.
6 MS. LUNCEFORD: And he testified that all
7 of that flowed. You're going have some his fasciectomy
8 and his arm opened up, because he'll even tell that if
9 it had been fixed at the time or within a day, you know,
10 the day that he wouldn't have had to have a fasciectomy.
11 Did that damage, they can argue, was all due the nurses
12 for not, you know, recognizing it or due to Holt. But
13 we're taking about specific nerve injury from this
14 injury. And he's going say all of it was due to that.
15 THE COURT: What he is telling me that he
16 couldn't allocate.
17 MS. LUNCEFORD: Just that how much -- you
19 A. The radial nerve injury I was what occurred at
20 the time of the operation. And the other -- the median
21 never, the ulnar nerve, it's difficult to tell whether
22 that occurred at the time of the surgery or that
23 occurred from the ischemia. Nobody can know that, but
24 the radial never, I think, without a doubt, it's out
25 from the site of the injury all of the way down the arm.
Gina Wilburn, CSR Official Court Reporter 55th District Court 321
1 THE COURT: And when it comes time for the
2 jury to talk about damages and the various categories,
3 how will -- how will that distinction help them?
4 MR. HODGES: It won't.
5 MS. LUNCEFORD: When you look at the
6 medical records and you look at the nerve conduction
7 studies later on, the damage flows from the radial i 8 ~' never. That's why he can't --
9 I THE COURT: So his ability to mow the
10 grass is because of radial nerve.
11 MS. LUNCEFORD: He can't grip. Am I
12 right?
13 THE WITNESS: That's not my area of
14 expertise.
15 MR. HODGES: Yeah, that's
16 MS. LUNCEFORD: That's not his area.
17 MR. HODGES: I'll tell you from the
18 brachial plexus cases, that's not correct.
19 MS. LUNCEFORD: I'm saying is that
20 he -- the reason that no one has a neurologist is
21 because nobody can tell, okay, but with respect to the
22 injury and when it occurred and I'm just saying how much
23 do -- they can't allocate it. There is no doubt that an
24 injury occurred at the time to the nerves and that's
25 what he can testify to.
Gina Wilburn, CSR Official Court Reporter 55th District Court 322
1 THE COURT: If I -- if I accept that and
2 let him testify about that, I'm having trouble relating
3 it to anything that the jury can do, because the jury's
4 going to be asked to testify about lost wages that's
5 unrelated to that; lost, you know, the -- ability to do
6 things around the household, and -- let's say that they
7 find it's worth a dollar a day that he can't hammer a
8 nail. I don't know what he's going to be asked to do,
9 but if the experts can't designate what portion of
10 the -- the inability to do that act came from the
11 original surgery versus what the nurses did versus the
12 subsequent surgery, then the testimony hasn't
13 contributed to anything the jury's going to need to say.
14 MS. LUNCEFORD: I understand it hasn't for
15 damages, but for injury it has. Because he's going
16 testify that there is no way it could haven't been
17 injured at the time, but just because --
18 THE COURT: But we already resolved that.
19 That doesn't relate to an issue, either, because the
20 because the first and second -- the first question is
21 negligence, if it doesn't relate 'cause nobody's saying
22 Holt's surgery was negligent. The second question is --
23 is percentage allocations, which are both functions of
24 negligence. And the third one is damage, which is the
25 one that I'm having trouble sorting out because he can't
Gina Wilburn, CSR Official Court Reporter 55th District Court 322
2 let him testify about that, I'm having trouble relating
3 it to anything that the jury can do, because the jury's
6 things around the household, and -- let's say that they
7 find it's worth a dollar a day that he can't hammer a
8 nail. I don't know what he's going to be asked to do,
13 contributed to anything the jury's going to need to say.
21 negligence, if it doesn't relate 'cause nobody's saying
22 Holt's surgery was negligent. The second question is --
25 one that I'm having trouble sorting out because he can't
Gina Wilburn, CSR Official Court Reporter 55th District Court 323
1 allocate that particular injury to a particular damage.
2 MS. LUNCEFORD: 'cause nobody can from
3 that perspective. But I guess I'm trying to get past
4 the -- you're stopping with the surgery is not
5 negligent, the severing of the artery was not
6 negligence. That's something that's a complication.
7 But the rest of the surgery and the reaction he's going
8 to testify about this, and he's said that in his
9 deposition, and in our -- our designation, and they
10 asked him about that.
11 THE COURT: Okay. So you're going to say
12 Holt was negligent in the surgery.
13 MS. LUNCEFORD: In response to the
14 excessive bleeding, which is exactly what Dr. Edwards
15 said, too, but he talked about it afterwards.
16 MR. ASSAD: He's not an orthopedic.
17 THE COURT: Then what does the nerve
18 damage have to do with the response to the excessive
19 bleeding?
20 MS. LUNCEFORD: Well, that has to go to
21 what the -- I mean, that has to go to what the damages
22 flows from, but I think if he's testifying that he
23 believes the nerve damage happened because he couldn't
24 feel his arm afterwards and even though he got pink, he
25 couldn't, you know, do certain things, there was no
Gina Wilburn, CSR Official Court Reporter 55th District Court 324
1 nerve conduct test to know what was going on. That's
2 absolutely relevant to the jury to know that there isn't
3 a way of figuring that out.
4 MR. ASSAD: He's not an orthopedic
5 surgeon. He can't testify as to what an orthopedic
6 surgeon should or shouldn't have done at the time when
7 there is excessive bleeding.
8 THE COURT: I don't see that has anything
9 to do with what I'm worried about, though.
10 MS. LUNCEFORD: This is the problem
11 because Holt's not -- I mean, it's a problem because
12 Holt's not here, and you've got this big elephant in the
13 room. And if they could tell, they would have gotten a
14 neurologist to be able to testify but --
15 MR. ASSAD: The reason why there was no
16 neurologist because he's the first doctor in five years
17 that has come up with this theory out of the blue
18 because he got paid $40,000 to come up with it.
19 THE COURT: You know that doesn't bother
20 me.
21 MR. ASSAD: I'm saying, we're not
22 getting --
23 MR. HODGES: We didn't get a neurologist.
24 We're not the ones saying this.
25 THE COURT: Not what I'm struggling with.
Gina Wilburn, CSR Official Court Reporter 55th District Court 325
1 MS. LUNCEFORD: I think that he's going to
2 testify, and correct me if I'm wrong, Doctor, that that
3 the nerve injury occurred at the time of the original
4 surgery based on these factors. What happened after the
5 surgery, how, you know, he didn't get any feeling back
6 in his hand, and they can cross him on, well, you know,
7 Dr. Martin said he -- it pinked up and all of that. And
8 he can ask him why is that not the case? That's direct
9 contrary testimony -- testimony.
10 MR. HODGES: Still didn't get over 702,
11 Judge.
12 MS. LUNCEFORD: I think it does.
13 MR. HODGES: Does not come close, not even
15 THE COURT: What I'm struggling with is
16 what information it would impart to the jury that they
17 would use. And I've been through out loud the questions
18 that the jury has to answer. And I think I've been
19 through potentials yeses and nos and numbers. And --
20 and I thought for a while about whether or not it's
21 important to have him in just to damage the credibility
22 of other people, which by itself is okay. It isn't on a
23 point -- it isn't on a point that -- those people are
24 being used for as -- as -- as I sort through it in my
25 head. Gina Wilburn, CSR Official Court Reporter 55th District Court 326
1 MS. LUNCEFORD: But, Judge, they all have
2 said Vance, Martin has said the injury occurred at
3 the -- because of the ischemia. And so they're alleging
4 that because of the delay in recognizing the injury and,
5 therefore, the discharge -- the effectuation of the
6 discharge by nurse, that that caused the ischemia to get
7 worse and that caused the injury. Now, certainly we
8 have arguments that Hold could have recognized that, so
9 that's a separate --
10 THE COURT: Okay. So -- maybe you're
11 saying -- maybe you're saying that this injury isn't
12 ischemia and, therefore, the nurses didn't fail to
13 respond to the ischemia because that wasn't the damage.
14 MS. LUNCEFORD: Exactly. That's one of
15 the -- that's one of the things, and that's important
16 for the jury to know.
17 MR. ASSAD: Well, I think it's very clear
18 that the nurses failed to -- with all of the circulation
19 issues that they failed to recognize there was a
20 vascular injury, and he's not going to say there was no
21 vascular injury here.
22 THE COURT: We're back to failure to -- I
23 mean, enable to allocate because -- because now -- now
24 I'm understanding what you've always been saying. I
25 don't want to say now you're saying -- that the nurses'
Gina Wilburn, CSR Official Court Reporter 55th District Court 327
1 failure to respond to ischemia is one thing, but the
2 nurses failure to respond to the nerve damage is
3 completely separate. And that is something they didn't
4 fail to do, and this is the source of the damage. But
5 that's the one thing that he's saying he can't allocate.
6 MS. LUNCEFORD: He can't allocate, but he
7 can certainly say that based on reasonable medical
8 probability, that he -- that was a nerve injury that
9 occurred to the radial nerve at the time of the original
10 surgery.
11 THE COURT: I'm not sure you can just
12 raise it and then lay it out there, because at that
13 point if the jury makes any decision based on it, it's
14 not based on the evidence.
15 MR. HODGES: Uh-huh.
16 THE COURT: I think I strike him.
17 MS. LUNCEFORD: Strike him totally? He
18 can't talk about whether a vascular surgeon can come in
19 and he believes -- he talks about standard of care that
20 a vascular -- that any surgeon who encounters counters
21 this much bleeding --
22 THE COURT: Uh-huh.
23 MS. LUNCEFORD: -- his responsibility is
24 to call someone like him to come in and evaluate what
25 the source of the bleeding is.
Gina Wilburn, CSR Official Court Reporter 55th District Court TAB 2 ORIGINAL CLERKS RECORD
FILED IN APPELLATE COURT NO. 1st COURT OF APPEALS HOUSTON, TEXAS 5/22/2014 1:45:27 PM CHRISTUSHOSPITAL-ST ELIZABETH C:HRI~TnPHFR A PRINF APPELLANTS) Clerk
VS. TRIAL COURT NO. 2011-01306
JAY HOUSTON APPELLEES)
FROM THE 55th District Court of Harris County,at Houston,Texas
HON.JEFF SHADWICK,NDGE PRESIDING.
Applied for by ERIN E LiJNCEFORD on 14TH day of MAY A.D., 2014 and delivered to the "IST" COURT OF APPEALS on the
6TH day ofJUNE A.D., 2014.
CHRIS DANIEL Harris County,District Clerk
By: /S/ PAT TIPPINS PAT TIPPINS,Deputy
Attorney for Appellant:
ERIN E LUNCEFORD SPROTT RIGBY NEWSOM ROBBINS & LUNCEFORD P C 2211 NORFOLK SUITE 1150 HOUSTON,TEXAS 77098
Attorney for Appellee:
DAVID W HODGES KENNEDY HODGES LLP 711 WEST ALABAMA STREET HOUSTON,TEXAS 77006
AP3 R04-30-92 1 01/09/2013 04:36:31 PM 713-755-1451 Page 7 / 62
Pa{fie .22 Page i4 1 Q. In the past -- 1 THE WITNESS: Just make sure it's -- the 2 A. It's m id 2000s. 2 nurse from the hospital is texting me. Sorry. 3 Q. Now,going -- continuing to go through your 3 MS.LITNCEFORD: That's okay. If you need 4 CV,on page 2, Publications, "Management of ~ to take a break,just let us know. 5 Tracheobronchial Injuries - 28 Years Experience, Annals 5 THE WITNESS: I'll see. I mean, she was of Thoracic Surgery" -- asking if I was at the hospital and I told her I'm not. 7 A. Yes. 7 See what she responds. Q. -- are you the only author on that case? MS. LUNCEFORD: Okay. 5• A. No. 5 (Discussion off the record.) 1U Q. Are you the primary author on that 1 +~ Q. (By Mr. Assaad) What percentage of your 11 publication? 11 surgeries that you perform are outside the heart, aorta 12 A. Na 12 and the main vessels? 13 Q. How many other authors were there? 13 A. My practice, I would divide it 30 percent, 30 14 A. I don't rem em ber how m any were listed. 1~ percent, 30 percent. 30 percent cardiac, 30 percent 15 Q. Any of the -- anything in that article apply 15 vascular, 30 percent thoracic. 1~ to the facts in this case or issues in this case? 1 (Cell phone interruption.) 17 A. No. 17 THE WITNESS: I have to take this call. 1~ Q, Okay. With respect to your practice, do you 1 Sorry. 1° have any subspecialty other than cardiothoracic surgery? 15 (Discussion off the record.) 2~~ A. No. 20 Q. (By Mr. Assaad) We're going back as to the 21 Q. Just describe your practice. What do you -- 21 breakdown of your practice -- 22 what do you mainly do in your practice? L A. Yes. 2~; A. Everything in the cardiovascular and thoracic 2 Q. -- which we only ended up to 90 percent. So 24 arena. I do heart surgery,I do bypass surgeries, I do 24 you said 30 percent cardio, 34 percent vascular, and 30 2~ vascular surgeries, I do robotic surgeries,I do 25 percent thoracic? Page 23 Page 2 1 minimally invasive surgeries, I do endovascular 1 A. I guess you can say a third, a third, a 2 surgeries; and in the past, I've done -- when requested third. 3 by specific patients, I have done some general surgery 3 Q. Okay. Let's describe -- let's discuss the 30 ~ procedures, but not very often. I pretty much limit 4 percent that's vascular. When you refer to a third of 5 myself to the cardiovascular and thoracic arena. 5 your practice being vascular, what are you referring 5 Q. Is there a difference between a cardiovascular o to? Like, what type of surgeries do you do? 7 surgeon and a vascular surgeon? `' A. The majority are carotid endarterectomies, ~ A. Yes. bypasses to the lower extremities, femoral popliteal ~3 Q. What are the differences? G bypasses and aortic aneurysm repairs, as well as vein -- 1G A. A vascular surgeon cannot operate on the 1u varicosevein issues. 11 heart, is not specialized in operating on the heart. I 11 Q. Have you ever performed the surgery that 12 shouldn't say cannot, but he's... 1~' Dr. Martin performed in this case? 1< Q. So would a vascular surgeon, be fair to say, 13 A. No. 14 deals with everything vascular besides the heart? 7~ Q. What type of surgery did he perform? 1~ A. Not everything. There's the aorta that's 15 A. He did a bypass from the axillary artery to 1~ attached to the heart. The proximal aorta and the arch 16 the brachial artery, which is extremely rare. 17 vessels. Usually that's a cardiovascular surgeon that 1? Q. Why is it extremely rare? 1 ~s deals with that. The vessels beyond that level, a 1s A. Because the only time you really do it is for 1G vascular surgeon may tackle. 1a injuries to the axillary artery, and you don't see 2G Q. Okay. 20 those. 1 (Cell phone interruption.) i1 Q. In your practice, do you perform any surgery 22 MS. LUNCEFORD: Do you want to take ~~ or have you ever performed any surgery that involved the 23 that? ''3 axillary artery? ~~ THE WITNESS: Sorry. 24 A. By "involve,'" what exactly do you mean? 25 MS. LUNCEFORD: That's okay. 2~ Q. Besides moving it out of the way, actual
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Pa~~e 26 Page L~
1 manipulation or any type of -- anything with the 1 Q. Do you have any -- you're not a neurologist, 2 axillary artery. I mean, you've been thinking about it correct? .~ along time, so... A. No. 4 A. Yeah. Well, no. 4 Q. Do you hold yourself out as an expert in `~ Q. Hypothetically speaking, if Mr. Houston was 5 neurology? E presented to you, would you have performed -- are you A. No. 7 comfortable performing the surgery that Dr. Martin 7 Q. And you're not an arthopod, correct? performed or would you refer it to a vascular surgeon? A. Correct. ~~ A. I am a vascular surgeon. Yes,I would do it. 9 Q. And you don't hold yourself out as an expert 1U Q. Is there anything a vascular surgeon -- I 10 in orthopedic surgery, correct? 11 don't want to use the word "can do," but is more of 11 A. No. 12 his -- in his practice that's not involved or that a 12 Q. In reviewing the medical records and 13 cardiovascular surgeon, is not within the realm of his 13 depositions in this case, did you make any notes besides 14 practice? 19 notes that I've seen in the records themselves? 15 A. No. It --would you like me to elaborate? 15 A. Just the markings in the records that you've 1~ Q. Suie. 1 seen. 17 A. Okay. It used to be that cardiovascular 17 Q. No hand notes, written notes? 18 surgeons were the only vascular surgeons, and it was not 1~ A. No. 1~ till recent that this new division of vascular 1 Q. Any e-mails to Ms. Lunceford about your 20 surgeons. So it was always -- in previous tunes,the 2~ thoughts? 21 heart surgeon was always the vascular surgeon. It's 21 A. I don't -- no. 22 only till the last few years that you have, LG MS. ASSAAD~ Shaking your head. 23 quote/unquote,just vascular surgeons that don't do any 23 A. No. 24 cardiac surgery. 24 MS.LUNCEFORD: No,I was thinking of -- 2~ Q. Is there a difference in the training? ~5 makins sure that Iwas -- Page 27 Page 2'~ 1 A. Yes. The vascular surgeons don't -- don't get 1 A. No. 2 any training in cardiac. MS.LiTNCEFORD: -- that I had produced :~ Q. When you say "the last few years," what, five 3 them, ifI had any ofthat. 4 years? 4 A. No. No,we didn't -- the only 5 A. Yeah. Within the last five to ten years, that communication -- no. There was... c has developed. ~~ Q. (By Mr. Assaad) Well, you mentioned there was 7 Q. Are there any vascular surgeons at Methodist 7 an e-mail that you received from Ms. Lunceford in the ~3 West Houston Hospital? beginning of ttus case. A. Yes. Me and -- m e, Dr. Lafuente, who's a 5 A. Right. 1u cardiovascular surgeon as well, and Dr. Olson, who's a 1U Q. Okay. 11 cardiovascular surgeon as well. 11 A. Asking me to -- if I would review the case. 12 Q. Besides the cardiothoracic surgeon or any 1~ Q. Any other e-mails besides that one? 13 vascular -- 13 A. Beriveen her and I? 14 A. No. 14 Q. Uh-huh. 15 Q. -- non-cardiovascular surgeons? 15 A. Yes,I believe. 15 A. Non-cardiovascular surgeons, no. They are -- 16 Q. How many e-mails? 17 we're the -- well, I -- okay. On staff, I can't speak 17 A. Three or four, I think; but I don't know. 1~ to that. I think there are vascular surgeons on staff. 1 Q. Do you still have copies ofthose e-mails on 1~ But Dr. Olson, Dr. Lafuente and doctor myself do greater 1 ~~ your computer? 20 than 95 percent of all the vascular cases that are done 20 A. I don"t lazow. 21 at Methodist West Houston. 21 MS. LiTNCEFORD: You can go down and look 22 Q. Going down to your lectures, any of those 2~ at them. If I have them,I'll give them to you. 23 lectures deal with any of the issues in this case or are 2~' Q. (By Mr. Assaad) And prior to today, have you 29 relevant to issues in this case? 24 met with Ms. Lunceford or anyone at her office? 2~ A. No. 25 A. Yes.
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Page ~u Page ~'~ 1 Q. When? 1 Exhibit 2 is plaintiffs amended notice of your oral 2 A. I met with Ms. Lunceford last week. 2 deposition with a subpoena duces tecum. Have you seen i Q. For how long? ~ this document befare? 4 A. For an hour. 4 A. No. Not that I recall, I should say. 5 Q. Did you go over the m edical records together? 5 Q. Have you kept all the documents that you E A. We talked about the case. '~ received in this case? 7 Q. Did you go over the medical records when you 7 A. I believe so. talked about the case? ~ Q. Did you bring them here with you today? ~• A. I don't believe we had medical records with ~ A. Yes. 10 us. 1~ Q. Okay. Doctor, if you look at page 3,there 11 Q. Okay. Any deposition testimony in front of 11 was a request for numerous documents to ba produced here 12 you? 12 today. But before we go through that request,I just 13 A. She handed m e the depositions of a couple of 13 want to go over what you have reviewed in this case, in 14 doctors that she wanted me to review. 1~ formulating your opinions in this case. What have you 15 Q. Besides last week meeting for an hour with 1~ reviewed? 1~ Ms. Lunceford or anyone at her office, did you ever meet 1:~ A. Everythuig that"s in front of you. 17 with Ms. Lunceford prior to last week? 17 Q. So you reviewed the Christus St. John medical 18 A. No. 1~ records? 1~ Q. Any phone conversations? 1~ A. I mean -- 2t~ A. Yes. 2U Q. Feel free to -- 21 Q. How many? 21 A. Yeah. Yes, the medical records of Christus 22 A. I don't remember exactly, butI think it was 22 St. john. 23 one. 23 Q. What else? 24 Q. Do you recall when? 24 A. The Plaintiffs Original Petition, the medical 25 A. No. 25 records of Southwest Orthopedic Group,Dr. Jeffery Page 31 Page 3~ 1 Q. Do you recall the substance of that phone 1 Brudoff, the medical records of Gordon Martin, the 2 conversation? ~ medical records of Fairmont Diagnostic Center &Open 3 A. This case. 3 MRI,the statement written by Dr. Holt during mediation, ~ Q. Anything specific? 9 reports of plaintiffs expert Raymond Vance,the 5 A. No. 5 deposition of lay Houston, the deposition of 6 Q. Do you recall how long the phone conversation 6 Rae Houston, the deposition of Jacqueline Stringfellow, 7 was? 7 L.V.N., the deposition of Sherry Schumacher, R.N.,the A. Maybe 20 minutes. ~ deposition of Joal~nria Songer Budge,R.N.,the deposition 5 Q. Did you meet with Ms. Lunceford prior to `~ of Raymond Vance, the deposition of Thomas Edwards, 1 ~~ beginning this deposition? 1U M.D.,and the deposition of Marston Holt, M.D. 11 A. Yes. 11 Q. Thank you, Doctor. Is that everything that 12 Q. For how long? What time did you arrive here ld you reviewed in this case? 1~ today? 13 A. Yes. 14 A. I don't remember the exact time I arrived 14 Q. Have you done any literature search or review? 15 here. I met her maybe three or four minutes before we 15 A. No. 1'~ started this deposition. 15 Q. Are you relying on any literature or 1~ Q. So it would be fair to say you arrived here 17 peer-reviewed articles to support your opinions here 18 after 9:45 a.m.? 18 today? 1~ A. Yes. Yes. I think I was -- it was after 15 A. That I have reviewed recently, no. 20 10:00. I think I arrived a few minutes after 10:00. 2D Q. That you reviewed at any time? 21 I'm sorry about that. Z1 A. In my career? I'm -- literature that I have c2 MR. ASSAAD: Ask you mark this Exhibit 2~ read in the past will help me formulate the opuuons I 2 ~~ 2. 2~3 have now. 24 (Gomez Exhibit No. 2 marked.) 24 Q. Can you list the literature that will support 5 Q. (By Mr. Assaad) Doctor, what's been marked as 25 your opinions here today?
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Page ~4 Page 3u
1 A. No. 1 Exhibit 4, can you please describe what that is? 2 Q. Or any peer reviewed articles? 2 A. That is my bill for reviewing the -- I believe 3 A. No,I can't. I don't remember. ~' the previous exhibit you showed me. 4 Q. Okay. If you look at item No.6 on the 4 Q. So that's your bill for doing the medical 5 subpoena duces tecum, it says the witness is instructed 5 records that are listed in Exhibit 3, correct? to bring with him the following: "A copy of, or in the A. Correct. 7 alternative, a bibliography of each and every article, 7 Q. Okay. Prior to June 27th -- and just to be item or page of literature, regulation, statute, clear -- strike that -- you spent 18 hours reviewing ~~ textbook page or other reliable authority upon which the '~ those documents? 10 Deponent relied or to which the Deponent has referred to 10 A. Yes. 11 in forming any ofthe expert opinions expressed or to be 11 Q. Okay. And your bill is for $4,000? 12 expressed by said Deponent." 1~ A. Yes. 1~; I take it you didn't bring anything here 13 Q. Prior to Tune 27, 2012, did you have any 14 today responsive to item No. 6, correct? 14 conversations with Ms. Lunceford or anybody at her 15 A. No. 1 office regarding your opinions regarding what you 1~ Q. And that is because you're not going to rely 1~ reviewed in medical records? 17 on any specific literature or textbook or docum ent to 17 A. Yeah. I believe we talked before then, yes. 1a support your opinions here today? 1 Q. Regarding your opinions? 1~ A. That I brought, no. 1 A. No. I mean, regarding the case. 2t~ Q. Or that you could... 2 Q. Okay. Would you have put that in your 21 MS. LUNCEFORD: We did provide you this. 21 invoice, the time you spent speaking with Ms. Lunceford? ~2 Q. {By Mr. Assaad) Or that you could refer to 21 A. W e -- not always, no. 2'; with a specific... ~=' Q. Do you see Ms. Lunceford outside of -- on a 29 A. Well, anatomy text. 24 social basis, like mutual friends? 2w Q. Okay. Besides that, is there anything you 25 A. No. Page 3`, Page 3~
1 will be able to refer me to today that's going to 1 Q. Okay. I understand there's someone used to 2 support your opinions, such as an article, textbook or 2 work here, Ms. Hirsch? 3 anything like that? 3 A. Uh-huh. 4 A. I don't know until you ask m e the question. 4 Q. Do you guys -- like the same jogging group 5 Q. But until today... s together or same --work out at the same gym together? A. As far as I know, no. F A. Na. 7 Q. Okay. 7 Q. Okay. And the reason I ask,I didn't m can to .3 MR. ASSAAD: I'd like to mark this as S be funny in any way, but the last expert, they worked Exhibit 3. out together. They had the sam e class together at the lu (Gomez Exhibit No. 3 marked.) 1 Ci Y. So that's -- so it's not that out there. So... 11 Q. (By Mr. Assaad) What's been marked as Exhibit 11 When did you first inform Ms. Lunceford 12 3 is a letter from Ms. Lunceford to you, dated March 14, 1 that -- that you're willing to -- strike that. 1~ 2012, providing you -- I guess, attaching the m edieal 1~ Would it be fair to say that you like to 14 records; is that correct? That's what Exhibit 3 is? 14 review cases and the medical records before you decide 15 A. Yes. 15 whether or not you will be an expert on behalf of a 15 Q. Is that the first time you received the 1 party? 17 medical records to review in this case? 17 A. No. I mean, if a lawyer asks me to review a 1~ A. I believe this was the first tim e. 1S case and I have time in my practice to do it and to give 1: Q. Okay. You didn't review any medical records 1 my opinion of what the case is, then I will consider it z~ prior to March l 4, 2012? z{~ and tell them my charges and -- and then Iwill -- once 21 A. I don't believe so. ~1 he gives me the material, I will tell them whatmy 22 Q. Okay. 22 thoughts on the case are. 23 MR. ASSAAD: Mark this as Exhibit No. 4. 2 Q. Okay. So you agree with me thatyou're not 24 (Gomez ExhibitNo.4marked.) 24 going to agree to be an advocate for one side or the 2~ Q. (By Mr. Assaad) Doctor, what I've marked z5 other until you review the records?
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Page ~;3 Page 4Q 1 A. I'm not an advocate for one side or the 1 A. Correct. 2 other. I'rn -- 2 Q. And how would you want to describe the third 3 Q. Okay. 3 factor, the -- how would you want to describe that? 9 A. I give you what my thoughts are on this 4 A. My experience in working in a hospital as a 5 opinion. I'm not for the plaintiffs, I'm not for the 5 physician. o defendants. Q. Your experience? 7 Q. Okay. But in this case, you're being paid by 7 A. Yes. ~ the defendant. Correct? R Q. Of working in a hospital? Okay. 9 A. Yes, to give my opinion. 5 And in reviewing a case, you agree that 1 t~ Q. Okay. 1~ you should be objective" 11 A. But if you want to pay me for my opinion, 11 A. Correct. 12 I'll -- sure. No problem. 1~ Q. And you must take into consideration all the l:s Q. If I pay you, will it change your opinion? 13 relevant data, that you have? 14 A. No. 14 A. Correct. 15 Q. So you agree that when you review a case, you 1~ Q. And do you agree that you should have evaluate 1G should be unbiased. Correct? 1 the case objectively and not let your opinions be 17 A. Correct. 17 prejudiced by the end result? 1 ~? Q. Should be fair and impartial? 1 A. Correct. 1 ~. A. Correct. 1U Q. Going back to the five cases or handful of 2~ Q. And you should not advocate for either side? 2 cases that you've done -- that you reviewed, have you L1 A. Correct. 21 ever informed the party requesting far you to review the 22 Q. You should rely on the facts. Correct? L.G case that you can't support their position? ~:~ A. Correct. ~'3 A. Yes. I mean,I give -- I can't remember a 29 Q. And should not imply or assume any facts? z~ specific case, but when they give me the information and 25 A (~kav L5 I review it and I give my opinion, sometimes it's not... Page 3° Page 41 1 Q. You agree with that or disagree with that? 1 Q. What they want to hear? 2 A. I agree. You can't assume facts, no. 2 A. What they want to hear, yes. That's hap~ned 3 Q. And you agree with me that in a medical 3 before. ~ malpractice case, you should rely on the medical records 4 Q. Do you know if that was for the plaintiff or 5 and the sworn testimony? 5 the defendant? 5 A. Yes. But I am a physician, so I know the A. I can't remember, but... 7 workings of a hospital. And even though documents only 7 Q. Can you remember one case that you -- that you ~ provide one story of what has occurred, there's many 8 were requested to review on behalf of a plaintiff? 9 things that occur that aren't in the documents. So as a t' A. I remember the lawyer who asked me to re -- 1v doctor, I can give you opinions of what is --what 1 Ci Q. Who's the lawyer? 11 usually happens in a -- in taking care of a patient 11 A. Why am I having a hard tune remembering names? 12 that's not necessarily reflected in the documents. 12 Well, I mean, my brother is a plaintiffs attorney, 13 Q. Okay. 13 Torge Gomez. 19 A. Thais what I'm saying, that, to form an 14 Q. Your brother's a plaintiffs atxorney? 15 opinion, you don'tjust rely on the documentation. 15 A. Yes. 1o Q. Soto form an opinion, you don't rely on the 15 Q. Where? 17 documentation or the sworn -- 17 A. Here, in Houston. And I've -- 18 A. Yau don`t only, only -- 18 Q. What's the name of his practice? 1y Q. Okay. You don't only -- 1 A. Gomez Law Firm. And I lrnow I reviewed a case 2J A. -- refer to the documentation. 2U for him and I reviewed a case for one of his friends who ?1 Q. So just to be fair, you rely on the 21 is also a plaintiffs attorney. And I'm blanking on his 22 documentation. Correct? ~2 name. I'm sorry. ~3 A. Correct. 2~ Q. The case reviewed for your brother, did you 29 Q. Yau rely on sworn testimony, such as 24 find -- I take it he"s a plaintiffs attorney, so he was 25 deposition testimony? 25 asking you if there was a deviation of standard of care^
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Pa{~e 42 Fage 44 1 A. I don't remember the specifics, but I -- most 1 A. Yes. n 2 likely you're correct. Q. Going back, when did you make your highlights 3 Q. Did you decide to be an evert on the case or and marks in the medical records of Christus 9 did he ask you to be an expert on the case? 4 St. John's? Was that prior to your invoice of Tune 27th J A. No. 5 or after? Q. Did he keep the case? A. No. Prior. 7 A. I don't -- I don't remember, but I don't think 7 Q. Prior. Okay. so. MR. ASSAAD: Mark this as E~ibit 6. 5 Q. Okay. And his friend, the other plaintiffs 9 (Gomez ExhibitNo. 6 marked.) i c, attorney? 1 ~.~ Q. (By Mr. Assaad} Doctor, I've marked an 11 A. Will Adams. Will Adams. ~7Vi11 Adams. 11 invoice dated -- marked as Exhibit 6 an invoice. Can ZL Q. When you reviewed the case, did you find 12 you please describe what this invoice is? 13 anything in those medical records that was a deviation 13 MS.LiTNCEFORD: Check. 14 of standard of care? 19 Q. (By Mr. Assaad) Or check,I'm sorry. 15 A. I believe the case that Will asked me to 15 A. This is a check. It's kind of smeared. I 1 ~i review I told him I didn't think there was a deviation. 1~ thit~ I know what it is, but it's a check for the 17 Q. Did you ever talk to your brother about this 17 predeposition meeting and the deposition. 18 case? 1? Q. Okay. That's for $5,750? 1~ A. No. 1~ A. Correct. 20 Q. Have you talked to anyone besides 20 Q. Okay. 2103 Water Ganyon Court, is that your zl Ms. Lunceford about the facts in this case? 71 home address? 22 A. No. 2~ A. Correct. 2 ~~ Q. When asked to review this case by 2:~ Q. Are there any other invoices that you have 24 Ms. Lunceford, were you asked to focus on any certain 24 tendered in this case to Ms. Lunceford that we haven"t 25 area? 25 covered so far? Page 43 Page 45 1 A. No. 1 A. No. This is it so far. 2 Q. Okay. 2 Q. Have you reviewed the medical retards of 3 A. She just gave me the records and asked for my 3 Christus St. John since June 27, 2012? 4 opinion. ~ A. I looked at them briefly last night, but Q. With respect to what? 5 not... J A. What I thought about the case. ~ Q. Okay. 7 Q. Okay. She didn't ask you to see whether or 7 A. I just skimmed through it real quick. not Dr. Holt deviated from the standard of care or any s Q. For how long? ~~ ofthe nurses deviated from the standard of care? 5 A. Probably less than an hour. ~ 1t~ A. She did not point me in any -- she didn't say 1 ~~ Q. Are you going to bill for that time? 11 anything. She said just review the case and tell me 11 A. I wasn't. Do I have to say? I don't know. I 12 what you think. 12 won't -- probably not. 13 Q. Okay. 13 Q. Did you make any notes or comments regarding 14 MR. ASSAAD: Mark this as Exhibit 5. 19 the depositions when you read them ? Anything in the "15 (Gomez Exhibit No. 5 marked.) 15 depositions, any ... l Q. (By Mr. Assaad) Doctor, what's Exhibit No. 5? 16 A. I made --yeah, in some -- in some of the 17 A. That's my bill for reviewing those 17 records I made notes. Not all of them, but some of them 1:3 depositions. 1s I did. "1 Q. Okay. And that's for the four depositions of 19 Q. In the depositions? 20 Nurse Songer Budge, Dr. Vance, Dr. Holt and Dr. Edwards? 2 ~~ A. I don't remember in which ones I made notes. zi A. Correct. 21 Q. Okay. 22 Q. Okay. And it took you 12 hours to review 2 A. In the --you skimmed them earlier, so you can 23 those depositions? 23 tell where I m ode notes and where I didn't. 29 A. Yes. _4 Q. With respect to the depositions of plaintiffs 25 Q. Okay. $6,000? 25 experts, is there anything, sitting here today, that you 12 (Pages 42 to 45) Magna Legal Servir.es 188 01/09/2013 04:36:31 PM 713-755-1451 Page 13 / 62
page 45 Page 4 1 disagreed with when you reviewed them? 1 Q. Okay. 2 A. You"re going to have to be more specific. _ A. Show me on the medical -- in the depositions 3 You're going to have to remind me exactly what comments 3 and medical records and I'll tell you. 4 I might have agreed with or disagreed with. 4 Q. Show you that Nurse Stellar worked on the 5 5 Q. Well, is there anythuzg that you wrote down or floor -- received Mr. Houston on the floor? I mean,I ~; anythuzg that you highlighted that you disagreed with? don't understand your question. What do you want me to 7 A. I don't remember. 7 show you? s Q. Okay. So sittuig here today, you don't recall A. If you're saying that that was the nurse that G or you don't remember anything that you may have read in 5 received him on the floor,I will take your word for 1+=i the deposition testimony of plaintiffs experts that you 1D it. 11 specifically disagree with? 11 Q. Okay. 12 M5.LLJNCEFORD: Objection, form. You ean 12 ~. There was multiple patient -- multiple nurses 13 answer. 13 that took care of Mr. Houston, and many of their 14 A. I did not mark all the things I may have 1~ signatures I couldn't read their names. So... LJ disagreed with or -- 15 Q. Okay. Are you going to testify or offer the 15 Q. (By Mr. Assaad) Okay. 1b opinion that the nurses at Christus St. John complied 17 A. -- or agreed with. I didn't -- I didn't do 17 with the standard of care? 18 that. I didn't... 1~ A. I'm not an expert on the standard of care for 1° Q. Do you disagree that the nurses in this case 1 ~^ nurses. Lit were negligent? 2u Q. Okay. So you're not going to offer any LI MS.LCTNCEFORD: Objection, form. 21 standard of care opinions regarding the nursing care in 2Z A. Do I disagree with -- repeat the question. L2 this case? 23 Q. (By Mr. Assaad) Okay. Do you disagree with L3 A. I"m not an expert in the standard of care for 24 any of the opinions that plaintiffs expert nurse Songer 2~ nursing. 25 gave in her deposition re~ardin~ the nursing care in L5 Q. So can you answer my question? You are not Page 47 Page 4~ 1 this case? 1 going to offer any opinions regarding the standard of MS.LLTNCEFORD: Objection, form. 2 care of the nurses in this ease? Is that a correct .; A. I have -- you're going -- you're going to have 3 statement? 4 to be more specific because I get the Nurse Stringfellow ~ MS.LITNCEFORD: We will stipulate to confused with Songer, what each of them -- 5 that. 5 Q. (By Mr. Assaad) Would you like -- ~ A. Okay. 7 A. -- said. So, if you're not -- give me a 7 Q. (By Mr. Assaad) Are you going to offer any 8 specific statement and I will tell you if I agreed with ~ opinions regarding the orthopedic care of Dr. Holt in it. 9 this case? lU Q. Okay. Well,just to clarify. Plaintiffs 1v A. In how he handled the vascular injury, I would 11 expert is Nurse Songer. 11 say yes. 12 A. Okay. 12 Q. Okay. Would it be fair to say that you're not 1~ Q. Nurse Schumacher is the one that made the 13 going to offer any opinions regarding the orthopedic i~ Kevorkian comment. 14 care that Mr. Houston received from Dr. Holt in this 15 A. Okay. 15 case? 15 Q. Does that help you out? 1~ MS.LUNCEFORD: Objection, form. 17 A. Yes. 17 A. I'm not an expert in orthopedics. 18 Q. Nurse Stellar is the one that was the first 1~ Q. (By Mr. Assaad) Okay. 1° nurse that received this patient on the floor? 19 MS.LUNCEFORD: When you get to a point, z0 A. Right. 2 ~~ I have to go to the bathroom. zl Q. Fair enough? You agree with that? 21 MR. ASSAAD: Why don't we take a break 22 IvfS. LIINCEFORD: Objection, form. 22 now then. 23 A. I don't rem ember. 2:~ (Brief recess.) 24 Q. (By Mr. Assaad) Oh, you don't remember? L4 Q. (By Mr. Assaad) Doctor, if you could,just 25 A. No. 25 summarize what your opinions are going to be in this 13 (Pages 46 t.o 49) Magna Legal Services 189 01/09/2013 04:36:31 PM 713-755-1451 Page 14162
pa{~e 5u Fage 5~
1 case that you fartnulated. 1 permanent damage sustained by Mr. Houston? 2 A. I think Dr. Holt, during his surgery, had a 2 MS.LLTNCEFORD: Objection, form. 3 major injury to the axillary artery. I don't think it 3 A. I mean,I think it would have made a ~ was small. It was a major laceration or major partial ~1 difference to repair it earlier. Yes. ~ transection of the axillary artery during his surgery. 5 Q. (By Mr. Assaad) What would have been the And from that point on, the patient had a axillary s change if it was repaired earlier in Mr. Houston's 7 artery that was injured and thrombosed, clotted; and I condition? 7 believe at the tim e of the axillary artery injury, he A. I mean, he had ischemic changes to his hand. most likely injured major nen~es to the arm,'cause 5 He lost some skin, he lost --you know. And how much 1u where the injury occurred, it's almost virtually 1[1 muscle he lost, I'm not sure. I mean,I didn't examine 11 impossible to damage the artery without damaging 11 Mr. Houston, so it's hard to tell completely. But I 12 multiple nerves. 1L think skin and muscle injuries would have been lass. 13 Q. Any other opinions? 13 Q. Okay. Are any of those skin and muscle 14 A. That's -- that's my opinion of what occurred 14 injuries he sustained permanent? 15 on this case. 1~ A. I'm not a hand expert or a muscle expert, but 15 Q. With respect to the permanent injuries that 1f some of the contractures and so forth that I think he 17 Mr. Houston has presently, you agree that they're due to 1`' has now are possibly due to those muscle injuries. 1~ newe dam age, correct? 1 Q. Okay. Well, let's take it from this point of 1'~ A. Yes. 19 view: Based on your review of the medical records, what zD Q. Okay. Is it your opinion that the nerve ~ c7 is your understanding of Mr. Houston's injuries? 1 damage was caused by a nerve injury during the surgery 21 A. He has anon-functioning left upper 22 or -- 22 extremity. 2~ A. Most likely during the surgery. ~3 Q. Non-functioning left upper extremity. 24 Q. -- or as ischemic injury as a result of poor 24 Anything else? 1s blood flow to the nerves or a compression because of 25 A. That's my understanding. Page ~~ 1 Page 53 1 blood? 1 Q. Any injuries to his -- is the left upper 2 A. My opinion is that it was injury -- when the z extremity, is it a nerve injury, a muscle injury? 3 axillary artery was injured, multiple nerves were 3 A. Soth. 4 injured. ~ Q. Both? ~ Q. So was the nerve injury reversible at any 5 A. Both. h time? Q. Any other injuries besides the left upper 7 A. I don't think so. extremity injury? 3 Q. Okay. 2 A. Well, they had to take vein from his leg to A. But we'll never know for sure. y repair the artery, so he has that scar. But I think 1u Q. Well, let's preface this,just going forward, 1 ~7 that's -- as far as to my knowledge, I think that's it. 11 can I ask you that all the opinions that you proffer 11 Q. Any injuries to his nerves in his hand? 12 today or formulate are made with a reasonable degree of 12 MS.LUNCEFORD: Objection, form. 13 medical probability? 13 A. Left upper extremity includes the hand. 14 A. Yes. 14 Q. (By Mr. Assaad) Okay. 15 Q. Okay. What is your definition of the standard 15 A. It's the entire extremity. 15 of care? 15 Q. Okay. Can you pinpoint exactly where the 1~ A. It's what a reasonable and prudent surgeon 17 nerve injury is in his left upper extremity? 1,~ would do in a -- physician would do in this situation. 1 A. It was the artery, the nerves surrounding the 1 ~~ Q. Okay. Before we discuss your opinions,I just 1G axillary artery. D want to kind of eliminate other areas we could discuss, 20 Q. Do you know which nerve? 21 just so I know where you stand on these issues. 21 A. There's multiple nerves there. There's the 22 With respect to the timing of the repair 22 ulnar nerve, the median nerve, the musculocutaneous 23 of the axillary artery, do you hav e an opinion whether 23 nerve. Without examining him, it's hard for me to tell 24 or not it would have made a difference if it was done on 29 how many of those were injured. 2~ January 8, 2009 or January 12, 2009 with respect to the 25 Q. So sitting here today, can you identify which
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Pa{fie 54 Page 5G 1 nerves were ittjured during the surgery performed by 1 be nerve damage as a result of a thrombosis and a lack 2 Dr. Holt on January 8, 2009? 2 of blood in the axillary artery causing a lack of blood 3 A. I mean, the ulnar nerve for sure was injured. 3 flow down to the nerves of the left extremity? 4 Q. Any other nerves? ~ A. The problem is -- I mean, there's other small 5 A. Without examining him, it's -- it's hard to 5 collateral blood vessels, arteries that supply blood to know. ~ the proximal arm. The axillary artery supplies all the 7 Q. Sitting here today, can you offer an opinion, blood flow to the distal part of the arm, so you could within a reasonable degree of medical probability, as to ~ have a thrombosis here (indicating) and nerves around s' which nerves were injured on January 8, 2009 during the 5 that artery would not be damaged except the nerves 1Q surgery of Dr. Holt? 1 t7 distal in the hand would be damaged. Do you understand 11 A. I believe the median nerve, the ulnar nerve, 11 that? 12 the musculocutaneous nerves were injured. 12 Q. Yes. 1~ Q. And what is the basis behind your opinion 13 A. So... 14 regarding that the ulnar nerve was injured? 19 Q. So it's your opinion today that if there is a 15 A. His hand. He never had any function in his 15 blockage in the axillary artery, that there's enough 1F hand from the time of the surgery on. 1~ blood flow going to the nerves around the shoulder area 17 Q. Did the block have anything to do with his 1~ to supply enough oxygen and enough -- 1s lack of function in his hand after surgery? 1S A. Yeah. The brachial plexus nerves would still 1° A. In median -- interscalene blocks usually last 19 be intact. 2~ eight to twelve hours max. He still had a i0 Q. And no damage to them at all? 21 non-functioning left upper extremity the following day. 21 A. Right. 22 Q. Do you have an opinion, within a reasonable 22 Q. No matter how long that block was? 2"i degree of medical probability, how long it takes fora ~3 A. Right. 24 nerve to become injured if it's not receiving any blood? 24 Q. Do you have any literature to support that 2~ A. I would say it's usually -- six hours is 25 opinion? Page ~~5 Page 57
1 usually the time frame. 1 A. No. Q. So would you agree with me,Doctor, that if z Q. Do you have any textbook to support that 3 the axillary artery thrombosed and there was no blood 3 opinion? 9 flow, that the nerves that the artery was providing 4 A. No. 5 blood to, within six hours, would be damaged? 5 Q. Okay. Have you attended any lecture or MS. LUNCEFORD: Objection, form. ~ seminar that you could point to that supports that 7 A. Yes. If the axillary artery was the only 7 opinion? ~~ artery supplying blood to those nerves, then those ~ A. Just my medical knowledge. G nerves would be damaged. 9 Q. With regard to the ulnar nerve injury, can you 1u Q. (By Mr. Assaad) Okay. What nerves does the 1u point to me anything in the medical records that 11 axillary artery provide blood to? 11 supports that opinion? Feel free to look in the medical 12 A. The axillary artery is a major branch ofthe 12 records. 13 left upper extremity, so it provides blood flow to all 13 A. Okay. The Michael Vennix, M.D. -- 14 the arteries ofthat extremity. 1~ Q. Is there a Bates number at the bottom of the 15 Q. And nerves? 15 page? 1~ A. Excuse me, nerves. All the nerves to that 15 MS. LUNCEFORD: At the bottom of the 17 extremity the axillary artery provides blood flow to. 1 ~' page. That's from somebody else. It"s not from -- 1~ Q. Okay. So you would agree with me,Doctor, 1~ Southwest Orthopedic Group records. 1u that if the axillary artery was blocked by a thrombosis 1G A. He suffered a brachial plexus injury. So like 2 ~7 or a clot, same thing, that there would be a major 2~ I was saying, all the nerves to the extremity were ~1 reduction in blood flow to the nerves from the point of 21 injured and he did -- I assume this Dr. Vennix is a -- Z~ the blockage or the thrombosis in the axillary artery 22 either a neurologist or a physical medicine doctor, and 23 down to the left extremity? 23 he did nerve conduction studies and electrodiagnostic 24 A. Yes. 24 findings consistent with a left brachial plexus injury, 25 Q. Okay. And within s~ hours, that there would 25 which is an injury high in the arm; and moderately 15 (Pages 54 t.o 57) Magna Legal Services 191 011Q9/2013 04:36:31 PM 713-75~-1451 Page 16162
Pa{fie 5 ~3 Page UO 1 severe. 1 nerves at the same time. And -- because he never 2 There are abnormalities seen throughout 2 regained any function to that arm since the tune he was .~ 3 most of the brachial plexus. Radial nerve distribution operated. 9 greater than median and ulnar nerve distribution, 4 Q. Okay. 5 greater than axillary musculocutaneous nerve ~~ A. If the nerves were intact, he would have 0 distribution, greater than suprascapular nerve 6 regained some function. 7 distribution. 7 MR. ASSAAD: Let's mark this as E~chibit In regards of the median and ulnar nerve 8 7. 9 distribution, there are findings of ongoing denervation :' (Gomez Exhibit No. 7 marked.) 10 with evidence of partial axonal continuity seen to both 1U Q. (By Mr. Assaad) Doctor, what is E~ibit 7? 11 nerve distributions. 11 A. That's an anterior view ofthe axilla from an 12 The radial nerve -- I'm sorry. I guess 12 anatomy textbook, Netter"s Anatomy Textbook. 1:3 it was the radial nerve that had the majority ofthe 13 Q. With your pen, can you mark the area in which 14 injury. It shows it has active denervation of the 14 the axillary artery was injured? 15 radial. So... i~ A. On this? 1 Q. What is the radial nerve control? In Q. Yes. i~ A. I'm not an orthopedic surgeon. So I mean, you i~ A. (Indicating) 1~ will need to ask an orthopedics. 1~7 Q. And I take it you circled the area which you i ~. Q. Or a neurologist? 1~ believe -- nU G. A. Or a neurologist, yes. A. Approximately, yeah. ~1 Q. What's the date of that? LZ Q. You're not saying the injury was that large, ~~ A. That is May 27, 2009. L2 are you? ~3 Q. So five months or five months after the L .~3 A. Well, he -- the injury was large. How 29 surgery, correct? 24 extensive, I don't know. G A. Five months after the sureerv. ~5 O. Let's talk about that. What's vour suunort Page ~, v'. Page ~1 i Q. Is there anything in Christus St. John medical 1 that the injury was large? L records at the time ofthe surgery, the first admission L A. If the injury was small, you would not --you 3 or the second admission on January 12, 2009,that you 3 would repair the injury because it's small. You could point to that indicated that there was an injury 9 wouldn't do a bypass on a small injury. You would J to the nerves during the operation? 5 repair the artery and be done with it. You'd take out 5 A. Like I said, he had an interscalene block, the clot, stitch the tiny hole up and be done with it. which only lasts usually 8 to 12 hours in the majority 7 But that wasn't the case. They couldn't. He did an ci ofthe patients. It's highly unusual for the block to s~ endovascular procedure. last longer than that; and longer than 24 hours, it's 5 If it was a sm all injury, he would have 10 virtually unheard of. But -- and if -- he had a io been able to endovascularly repair it, which Dr. Martin 11 nonfunctioning arm at the time of discharge, according 11 tried to do. But all his catheters, all his guide ZL to many ofthe nurse's notes, and they were saying it 12 wires, as soon as he tried to pass it down the artery, 13 was from the scalene block, but I believe it was from 1 ~~ it just went into space because there was a large hole 14 the nerve injury. 1 ~l or tear or transection of the artery. ZJ Q. Doctor, I agree with you that there's a nerve 15 Q. When you say "a large," how large are we 1~ injury here. I think there's no dispute about that in 16 talking about here? 17 this case. 17 A. I m ean, large enough that Dr. Martin felt that 1~ What I'm trying to ascertain is, what is 1~ it couldn't be repaired and that he had to do a bypass. ZJ your basis that you rely on to formulate the opinion 1~ Q. When you say "large enough," are we talking an 20 that the nerve was -- the nerves were injured during the tV inch, two inches, a centimeter? 21 operation by Dr. Holt on January S, 2012? cl A. It's hard to know. It's hard to lrnow. Li A. Where the artery was injured, where the LL Q. Are you aware of any -- strike that. 2~ laceration occurred, if you look at the anatomy 2.J I'm just trying to figure out what your 24 textbooks, it's surrounded by the nerves. It's almost L definition of "large" is. ZJ impossible to damage that artery without damaging the 25 Do you recall how long the thrombosis
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1 was. 1 A. I have not seen that. z A. Here's the definition. The -- 2 Q. Okay. How many times have you seen an injury :~ Q. Go on. 3 to the axillary artery? 4 A. The laceration was large enough -- the 4 A. I have never seen an injury to the axillary ~ transection or the damage to the artery was large enough 5 artery. that Dr. Martin felt it could not be repaired and that Q. Even in med school or residency? 7 he had to do a bypass. That's a -- that's a significant 7 A. Never. I mean, it's extremely rare. And I injury to the artery. R practiced at a hospital with multiple orthopedic ~ Q. Okay. Well,I'm not a vascular surgeon,so 5 surgeons doing lots of shoulder surgeries. And they 1u explain to me, a layman,I mean, is a 2-millimeter 10 have called me for other injuries they have had but 11 laceration large? 11 never for a -- not in a shoulder surgery. But in knee 12 A. No. 1~ replacements and so forth they have damaged arteries in 13 Q. Okay. Is a 5-millimeter laceration large? 13 the leg and we have had to repair them. But never been 14 A. It depends on the size of the vessel. 14 called for an Hillary artery injury. 15 Q. How large is the axillary artery? 1~ Q. Never in a trauma situation, broken bones? 15 A. The a~llary artery is probably usually in the 15 A. No. 17 range of a centimeter in diameter. 17 Q. Car accident? 1~ Q. Centimeter in diameter? 1 A. That's where you see it m ore often, but I 1~ A. Centim eter to a centim eter and a half, yes. 1 r-' haven't had to deal with that injury. ZD Q. Okay. ~ r~ Q. Okay. And you mentioned that even with an 1 A. But I m ean, it also depends -- it depends on 21 injury to the axillary artery where there was no blood z2 the size of the patient, the size ofthe person. So I L'% flow, that there is enough blood flow around the 2~ mean, it varies; but on average, for an average person, ~3 brachial plexus to supply enough of the requirements for 24 yeah. 24 the nerves that they need from the blood; is that 25 Q. Okay. Now,was the laceration across the -- 25 correct? P,~ge 63 P;~ge u5 1 was it a lateral laceration or was it up and down? 1 A. Yes. Z A. No one knows. 2 Q. However, not at the distal part ofthe -- like 3 Q. Okay. Do you know whether tha vessel, the 3 the hand? 4 artery, the axillary artery was still connected or was ~ A. Correct. 5 it completely lacerated? 5 Q. Okay. 6 A. No one knows. A. Forearm and hand. 7 Q. Okay. The fact that it stopped bleeding 7 Q. Okay. How far down will that, I guess, during the surgery by Dr. Holt, was that indicative of supplemental blood flow? S anything? g A. It varies from person to person, you know, 10 A. Not really. 1+"i but... 11 Q. Okay. 11 Q. Past their elbow? 12 A. You can --like, you can have a major injury 1~ A. No, No. It would be proximal to the elbow. 13 and it stops the bleeding. If you compress on an artery 13 Q. Okay. There has to be some blood passing 14 long enough, it will stop, it will clot. 1~ through the forearm and the hand, correct? 15 Q. Okay. Do you recall in Dr. Holt's operative 15 A. It all comes from the axillary artery. 1~ report whether or not he pressed on the artery to stop 1 r~ Q. All of it? 17 it from bleeding? 17 A. All of it. From the forearm, the hand, all of is A. He did. He said he held pressure and he gave 18 it comes from the axillary artery. 19 a bunch of coagulants, thrombin, into the -- which is l9 Q. Nowhere else? 2o a -- something that form s clots, into the wound. And he 2Ci A. Correct. 21 said he held pressure, and that once he stopped, then ~1 Q. So you agree with me that post-surgery there 22 it -- there was no more bleeding. 22 was still blood flow coming down to the hands? ~; Q. In your practice have you ever seen an injury ~3 A. Yes. I mean, there was some blood flow, yes. c4 to the axillary nerve and no injury to -- or axillary 24 Q. Where did it come from? 25 artery and see no injury to the brachial plexus? ~5 A. Through the capillaries. 17 (Pages 62 t.o 65) Magna Legal Servir.Ps 193 01/09/2013 04:36:31 PM 713-755-1451 Page 18162
Pa~~e 66 Pave U~ 1 Q. The capillaries? 1 Q. So how does it go from the shoulder area all 2 A. Yeah,through the capillaries. Through small 2 the way down to the hand through capillaries? 3 collateral branches. 3 A. Through different connections. 4 Q. Capillaries are pretty small, aren't they? 4 Q. Is there any literature to support that? 5 A. Yes. 5 A. Anatomy textbooks. 6 Q. Tiny? & Q. You have, that are right there? 7 A. They are tiny. 7 A. No. I mean anatomy -- I don't know if Netter Q. So it's your opinion today within a reasonable has the -- the capillaries are unnamed. You don't have 9 degree of medical probability that the blood flow to 5 names for your capillaries because they're variant from 1 ~~ Mr. Houston's hand post-surgery on January 8, 2012 came 1 t~ person to person. 11 from capillaries? 11 Q. Can you point me to one document, one 1L A. Yeah. But he -- he would have -- if it 12 peer-review article, one textbook, anything that 13 wouldn't have been repaired on Monday and it had waited 13 supports your opinion that, if the axillary artery is 14 a little bit longer, that hand would have turned black 14 blocked, that the distal extremity such as the hand can 15 and would have been dead. He was able to survive 1 receive blood from the capillaries? 1~ several days with that amount, minimal amouart of blood 1F MS. LUNCEFORD: Objection,form. 17 flow; but the arm wouldn't have survived forever on that 1? Q. (By Mr. Assaad) Yes or no? 18 amount of blood flow. 18 A. Do I have a textbook right now, no. Do I have 15 Q. If you had blood flow to the hand that was 19 any literature, na. 2D supported -- that came basically only from capillaries, 20 MS. LUNCEFORD: Just wait for a 1 what would the capillary refill be in the fingers? 21 question. A. Delayed. 22 THE WITNESS: Yeah, I will. ''3 Q. How delayed? 23 Q. (By Mr. Assaad) In a hypothetical situation, 9 A. I mean, it wouldn't be normal. Over four 24 Doctor, if the axillary artery was repaired z~ seconds. ~5 intraoperative -- or during the operation on January $, Page E7 Page EUi
1 Q. Would it be over eight seconds? 1 2009, a vascular surgeon was called in and it was 2 A. Possibly. 2 repaired, what injuries would Mr. Houston have sustained 3 Q. Over ten seconds? 3 in the case? 4 A. Possibly. A. I think he still would have had nerve injuries 5 Q. Just so I understand it 100 percent, it's your because the injiuy that damaged the axillary artery I testimony that blood flow to the hands when the axillary n think damaged the brachial plexus nervas. 7 artery is blocked comes from the capillaries all the 7 Q. Can you identify with a "B" on each nerve that 8 way -- capillaries from the shoulder area all the way ~ you believe was damaged in Exhibit 7? " down to the hands? A. (Indicating). 1u A. And small branches. 1U Q. And what you have marked "B" here are the 11 Q. What small branches? l~ nerves that you believe were damaged, what is your 12 A. That don't have names. I mean,they're small 12 support,the medical records that indicate these nerves 1~ branches. Because they're variant in every person. 13 were damaged? 14 Q. Are all capillaries connected with each other? 1~ A. Well,I mean, one thing that I found was that 15 A. All capillaries connected with each other? 1~ in Dr. Vennix' electrodiagnostic study of the left 1~ Q. Yeah, like -- 1 brachial plexus injury. 1'1 A. No. 17 Q. When she said that the median nerve was -- was 1:~ Q. Can you go from -- l~ it the ulnar nerve or the median nerve that was really 1: A. The liver capillaries aren't connected to 1~~ damaged? 20 the -- 1~ MS. LUNCEFORD: Objection, form. 21 Q. In the arm. ~1 A. He did radial more than median and ulnar, and 22 A. -- heart capillaries and -- 22 median and ulnar more than axillary and 23 Q. In the arm, sir. In the arm . 2 musculocutaneous, and axillary and musculocutaneous more 24 A. No, all the capillaries in the arms are not 2~ than suprascapular. So there were degrees ofinjury to 25 connected to each other. t~ the different nerves.
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Page 7t~ Page 7~ 1 Q. (By Mr. Assaad) Were the nerves still intact? 1 the artery was caused by an object or by sh~etching or 2 A. According to -- according to the specialist, 2 what? Do you have an opinion? .s the radial nerve I guess is completely gone. And there =~ A. I don't have an opinion how he did it, no. 4 is differing degrees of damage to the median and ulnar ~ Q. Well, do you think it would affect your 5 and the axillary and musculocutaneous. 5 opinion whether or not it was an injury caused by an E Q. Based on that record there, can you narrow >; object or if it was caused by being stretched? 7 down in this picture where the exact injuries being that 7 A. I mean, either way it's a significant injury could injure -- that a laceration to the axillary artery ~ to -- you know. ~• could injure all those nerves? 4 Q. I understand that. I'm questioning would it 1 t~ A. No. I mean,I can give you a generalized area 10 make a difference to your opinions today? 11 like I did but not exact pinpoint. 11 A. If this was all caused by stretching? 12 Q. What was the mechanism that Dr. Holt must have 11 Q. Yes. Gr if it was caused by an object, like a 1? done to injure all those nerves according to your ~~; scalpel, would it change your opi7uon? 14 opinion? 1 A. No. I mean'eause the stretch -- no. 15 A. I don't know. I'm not an ortho -- I don't 1 Q. Let's assume that the nerves were not injured 1~ know. I'm not an orthopedic specialist. I don't know i during the operation. 17 what instruments he uses to do the hemiarthroplasty and 17 MR. ASSAAD: Ms. Lunceford,I understand 1a how he got down to that area. I don't know that. I'm 1 that you might not like my questions, but for the past 1~ not an orthopedic specialist. ~G half hour you have been shaking your head up and down or 2!~ Q. So you're not an orthopedic specialist, you're 2U shaking your head yes and no. 21 not a neurologist; but you're willing --you feel you 21 MS. LITNCEFORD: That's what I do. ~2 are qualified to offer an opinion as to how the nerves 22 MR. ASSAAD: Well,I don"t thuzk that's 2'? were injured? ~3 proper in a deposition. And this is for the record. 24 A. Not how but when. 2~1 And it's after my questions and it kind of indicates 2~ Q. When. Okay. Were the nerves stretched? Do 2S which wav you want the doctor to answer. Page 71 Page 73 1 you low one way or the other? 1 M8. LLTNCEFORD: Oh,that is not true. 2 A. Don't know. I mean, in medicine you try to -- 2 N1R. ASSAAD: And this has nothing 3 I mean, he had an axillary artery injury; we know that. 3 to do -- 4 And we know where the axillary artery injury occurred. 9 MS. LUNCEFORD: Ask him whether he is 5 And where that injury occurred, all these nerves 5 getting coached by me and then you can get a clear 5 surround the artery. And it's hard to even imagine that question on the record. 7 however he injured that artery that somehow all the 7 MR. ASSAAD: I just wish you would just nerves escaped injury and just the artery was injured. stand still and not respond to every single question. 5 I can't -- I don't know how that could happen. 9 Is that very hard for you to do, Ms. Luncaford? 1 t7 Somebody would have to explain that tome 1u MS. LUNCEFORD: It is impossible for me 11 because I have no idea how he could injure the artery 11 to do, so you can go ahead and ask your question. 1~ there and not injure any of the nerves. 12 Q. {By Mr. Assaad) Assuming hypothetically that 1 ~; Q. Well, is it possible that he lacerated the 13 there was no injury to the nerves during the operation, 14 artery with a scalpel and did not hit any nerves? 14 could the lack of blood flow caused by the blockage in 15 MS. LLTNCEFORD: Objection, form. 15 the axillary artery cause the injury to the nerves that 1~ A. He didn't describe that in the operating 15 Mr. Houston sustained in this case? 1'7 report. 1? MS. LUNCEFORD: Objection, form. 1s Q. (By Mr. Assaad) I'm saying, is it possible? 1 A. I don't think so, because the injuries were in 1~ A. I have no idea why he would have a scalpel to 1G the brachial plexus. That's where the diagnosis. It 20 cut the axillary artery. 2D was all high, so I don't think so. 21 Q. No. He was cutting through fat or tissue or 21 Q. {By Mr. Assaad) Do you know whether or not 22 muscle or whatever he does and accidentally hit the -- 22 the injuries to the nerves according to the EMG report L ~; hit the artery. Is that possible? 23 were distal from the injury to the axillary artery or z4 A. Sure, that's a possibility. 24 closer? 5 Q. Do you think the artery damage, the injury to 25 A. My impression from what -- reviewing the
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1 depositions and the medical records is that the injury 1 A. It can tell you the level of the injury. 2 was at the site -- the nerve injuries are at the site of ~ Q. Yes. 3 that artery injury. ~ A. That's why they do it. 4 Q. And what's your basis? 4 Q. But if the injury on the ulnar nerve was at A. The medical records and the electrodiagnostic. 5 the elbow or -- '~ Q. Looking at Exhibit 7, you do agree with me ~ A. Higher up. 7 that all the arteries that are injured are going down 7 Q. -- higher up -- the arm, correct? ~ A. It would tell you. MS. LUNCEFORD: Nerves? ~ Q. It would? 1 t7 Q. (By Mr. Assaad) All the nerves that were 1~ A. Yes. 11 injured? I'm sorry. 11 Q. How would it tell you? 12 A. All the nerves are -- yeah, they all -- 12 A. I'm not an expert so... 13 Q. Okay. ~~ Q. So how do you know it would tell you? 14 A. -- go down the arm. 1~ A. Because I've had EMGs done on patients and 15 Q. So what in the medical record indicates that 15 neurologists have told me where the injury is. 1 ~~ the injury to the nerves was not distal from the injury 1~ Q. Okay. 17 to the axillary artery? 1; A. How far up the nerve it occurred. 1} A. Abnormalities seen throughout most of tha 18 Q. Doctor, let's look at the next page. You see 13 brachial plexus. It's not -- 19 where in the EMG he is discussing the segment of the 2U Q. Okay. ~ ~~ nerves that are injured? 21 A. -- specific to one peripheral nerve. It's all r1 A. iJh-huh. up here. 22 Q. What does it tell you for the ulnar nerve? 23 Q. Where is the brachial plexus? 23 Where is it injured? 4 A. The brachial plexus is up in the shoulder. 2~ A. I don't know how to interpret -- 2~ Q. Okay. It's one specific spot or is it an L5 Q. Well, -- P~ge 75 Fa~~e 77
1 area? 1 A. -- the report. 2 A. It's an area. It's multiple nerves. Z Q. -- do you see here where it says "wrist below 3 Q. Okay. Multiple nerves over the area. It's 3 elbow"? 9 not -- doesn't it go throughout the whole shoulder, the 4 A. Wrist below elbow, yes,I see that. 5 brachial plexus? 5 Q. Okay. Would you believe that is the area that A. No. ~ he's testing on the ulnar nerve? 7 Q. Okay. 7 A. I'm not an expert in how to read EMGs. A. No, no, no. The brach -- ~ Q. Well, it seems like you're an expert to 9 Q. Circle where the brachial plexus is in diagram G determine by reading that EMG that the injury was in the 10 7. Exhibit 7. 1 ~~ brachial plexus? 11 A. (Indicating). 11 MS. LLTNCEFORD: Objection, form. 12 Q. Doctor,just so we have a Bates numbers, -- we 12 A. I didn't read the EMG. Dr. Venrux did. And 13 don't have a Bates number here? 13 I'm reading what his Comm ents were on the EMG. 14 MS. LUNCEFORD: Not in these records. 19 Q. (By Mr. Assaad) Okay. If you look at the 15 It's number five. 15 medial nerve, do you see where it says -- 1~ THE WITNESS:.Are we going to get to eat 15 A. Median. 17 lunch? 17 Q. -- median nerve that's wrist to elbow? 1~ (Discussion offthe record.) 1~ A. Uh-huh. 1u Q. (By Mr. Assaad) Doctor, are you an expert in 19 Q. Okay. That's not up in the shoulder, is it? 20 EMGs? 20 Correct? 21 A. No. L1 A. I didn't understand your question. Q. Okay. You understand it's a conduction study, 22 Q. I mean,the wrist to the elbow is not up in 23 correct? Z3 the shoulder area where the axillary injury occurred? z4 A. Correct. Z9 A. The wrist and the elbow is not at the 25 Q. Okay. 75 shoulder, no.
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1 Q. Okay. And you agree, Doctor, that the report 1 A. Somebody who's healthy -- in somebody who's 2 you are referring to, which was dated --which was 2 healthy, you're able to last several days with an :~ dictated on May 27, 2009, dated May 27, 2009, is using 3 occluded artery. And he was a healthy man. But if he 4 the electrodiagnostic testing study done on May 27, 9 was a very unhealthy man, he probably wouldn't have 5 2009, correct, to support its conclusions? 5 been -- his arm wouldn"t have survived that long with MS. LUNCEFORD: Objection, form. this type of injury. So it varies from case to case. 7 A. I assurn e that's what he used. Q. (By Mr. Assaad) Do you have an opinion within Q. (By Mr. Assaad) Doctor, you mentioned before a reasonable degree of medical probability of how long G that the axillary artery was blocked but that you had 5 it would take an individual such as Mr. Houston to have 1u seen no blood flow or very little blood flow to the 10 nerve damage if his distal extremity was only being 11 distal part of the left -- to the extremity, correct? 11 supplied with blood from capillaries? 12 A. Correct. 1~ MS.LUNCEFORD: Objection, form. 13 Q. Okay. How long would it take for nerve damage 13 A. No,it"s hard to tell. Out of all of -- you 14 to occur in that lower extremity from the elbow to the 14 laiow, out of all the, you know, the structures in the 15 tip of the hand? 15 hand, the nerve requires probably the least amount of 15 MS. LUNCEFORD: Objection, form. 1 blood compared to muscles and skin. Those require more 17 A. It depends on how much blood flow was getting 1 so... but it varies. 1~ down there through the capillaries and small 15 I mean that, the whole idea that 1'~ collaterals. 1 ischemia, you would have seen was the whole cause of it, 2D Q. {By Mr. Assaad) Do you have an opinion -- ~0 he never had return of any function the whole time. 21 A. I mean, your plaintiff, your experts are -- 21 From the injury in the O.R., from the time of discharge, 2z you know, the difference -- your experts say it was ~2 to the time he presented, there was no nerve function 2~ clotted at the time of discharge. What's their ~3 going on in that arm. 24 explanation of the hand not falling off? He didn"t 24 Q. So is it your testimony that the physical 25 come -- it wasn't repaired until Monday. Because there 2~ therapy he received and the -- after January 12th had no Page 7~ Page 31
1 was collateral flow through small capillaries keeping 1 improvement in his arm ? the arm open. I'm saying that it was clotted off and 2 MS. LUNCEFORD: Objection, farm. :~ damaged at the time of surgery. 3 MR. ASSAAD: Basis. 4 Sa there is no difference between your ~ MS.LUNCEFORD: It's confusing, it's ~ experts and my opinion of how the arm stayed alive until 5 vague, it's ambiguous with respect to what you're asking c Monday. ~ him. 7 Q. Yeah, but the arm -- an arm could stay alive, 7 Q. (By Mr. Assaad) Doctor, did he have any ~3 but there could be significant injury, correct? I mean, 8 improvement in his function after January 12, 2012 -- or your arm might survive, but there could still be nerve 9 2009, after the surgery by Dr. Martin? 1!~ injury, correct? 1v A. Yes. In his muscles, in his skin, those 11 A. Correct. 11 improved. 12 Q. Okay. How long would it take for that nerve 12 Q. What about -- 13 injury to occur if your blood flow is only coming from 13 A. As far as nerve function,I don't think so. 14 your capillaries? 14 Q. Well, assuming that there was improvement in 15 A. It depends on how much blood flow that was. 15 the nerve function, -- 15 Every -- you know, how much capillary flow. 16 A. Okay. 17 Q. So you don't know? 17 Q. --would that change your opinion today? 1 ~? A. It's impossible to know. It varies from 1~ A. No. I mean -- 1~ patient to patient. 19 Q. Okay. 2[~ Q. Well, if a patient -- ~ ~:~ A. -- sure, he could have had -- no. 21 A. If somebody -- if somebody is a smoker, they 21 Q. No? Okay. 22 have even less blood flow. And any kind of injury to a ~2 A. No. 2* major artery, they're more likely to -- 2 MR. ASSAAD: Mark this as E~ibit 8. 24 Q. And -- ~4 (Exhibit No. 8 marked.) 2~ MS. LUNCEFORD: Let him finish. 25 Q. Doctor, Exhibit 8 is the operative report of
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Pa~~e 82 Fa~~e S 4 1 7anuary 8, 2009,regarding. the surgery performed by 1 Q. Where is that here in the operative report? 2 Dr. Holton Mr. Houston. Do you recognize this 2 A. Lap sponges were packed in the area. 3 document? 3 Q. So it's your opinion within a reasonable 4 A. Yes. 4 degree of medical probability that a laceration as S Q. Have you seen this document before? 5 significant as you discussed previously to the axillary :; A. Yes. artery can be stopped by packing the area with lap 7 Q. Do you have any criticisms of the operative 7 sponges? report in any way? 8 A. Yes. g MS.LUNCEFORD: Objection, form. y Q. Okay. l;i A. The one criticism I have is that it was 1 t~ A. It's actually a very common maneuver. If you ii dictated several days after the procedure was done and 11 have a liver laceration, which bleed even more than an 12 on the day that he was readmitted. 12 axillary artery, that's what they do; they pack it with 1J Most surgeons try to dictate their 13 lap sponges. 14 operative reports within 24 hours after doing the 1~ Q. Do they pack the liver? 15 surgery because you remember more of what happened and 1~ A. Right. is what occurred and what you did. 1F Q. Right on top of the liver? 1~ And so that's the one criticism I have, 1~ A. Yes. 18 that he dictated it several days after the procedure was 18 Q. They put pressure on it? ZG done. 19 A. Yes. 2 C~ Q. When you have a surgery on a Friday, do you L0 Q. Was any pressure put on these lap sponges? ~1 wait until Monday to dictate it sometime? 21 A. He didn't dictate that. 2z A. I don't. I dictate immediately after I da the 22 Q. So you're assuming that it was? ~. case because that"s -- I'm just compulsive that way. 2_ A. When you say you're going to pack something 24 Q. At what point during this operation did the 24 with laps, that's -- usually it comes with pressure is z5 injury to the nerve our,in looking at the operative 25 applied. Page 83 Page ~5 1 report? 1 Q. Well, didn't he say here that he -- the wound G A. I don't know. I mean, my most likely guess was suctioned and lap sponges were packed in the area to 3 is -- 3 identify a source of bleeding? 4 Q. Doctor I don't want a guess. I asked you 4 A. Uh-huh. J before, I want all your opinions within a reasonable 5 Q. Did I read that correctly? r degree of medical probability. A. You read that correctly. 7 A. Okay. I would say it probably occurred with 7 Q. Does it say there it was used to put pressure S reasonable medical certainty is when the head was 3 on the vessel, on the artery to stop the bleeding? reduced into the socket, there was bleeding which ~! MS. LUNCEFORD: Objection, form. lU appeared to come from the lower border of the 1 ~:~ A. It doesn't say that. 11 subscapularis tendon. No vessel could be identified. 11 Q. {By Mr. Assaad) So you made that assumption . ZL The wound was suctioned and lap sponges were packed in 12 that there was pressure put on the lap sponges to stop 13 the area to identify a source of bleeding. No 13 the bleeding? 19 particular vessel could be identified superiorly or 19 A. When you say you packed with lap sponges, Z5 inferiorly to the wound. The cephalic vein was 15 that's -- in medical terms when you say you packed 1~ completely intact. The bleeding eventually stopped 15 something off with lap sponges, that's usually what you 17 completely. 17 do. 1 ~' Q. And -- 1~ Q. But when you pack something with lap sponges, 19 A. Observation ofthe surgical incision then took 19 Doctor, you're actually packing an area that you see is l~ place for approximately 15 minutes. No fiuther -- the 20 bleeding, correct? Correct? ?1 soft tissue was probed. No further bleeding was 1 A. Correct. nn recognized. In that time period, I would guess. 22 Q. Like the liver example, you said? .~ Q. You mentioned the bleeding was xtopped because 23 A. Yes. ~9 there was pressure on the axillary artery? 29 Q. You see the liver bleeding, you put the lap LJ A. Right. 75 sponges, you put pressure to stop the bleeding?
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1 A. Right. 1 to stop the bleeding on a severely damaged axillary 2 Q. He doesn't know where the bleeding is taming 2 artery? 3 from, correct? 3 A. It varies. ~ A. He does. ~ Q. Well, the one such as the one that occurred in 5 Q. He does? Where does it say that? 5 this case? A. There was -- d A. You could put pressure with one finger and cut 7 Q. Well, underline it on the e~ibit where he 7 off the axillary artery. said he saw where the bleeding was coming from. Q. So in this case if it was identified in which A. That's where he put the lap sponges. Why y the injury was so large that you couldn't repair it but 1 Ci would you put lap sponges there if there was no 1 t~ had to do a bypass, such an injury to the nerve or 11 bleeding? 11 artery can be -- the bleeding could be stopped by just 12 Q. No vessel could be identified. So where does ~1 putting pressure on it? 13 he identify where the bleeding is coming from? 13 A. Yes. 1d A. Wherever he put the lap sponges. 14 Q. Do you have any literature to support that 15 Q. Did you read his deposition, Doctor? Did you 1 opinion? 1 ti read Dr. Holt's deposition? 1F A. No. 17 A. I did. ]- "' Q. Well, what's your basis to support that 1y Q. Did you just not believe him when he said he 18 opinion? 1~ couldn't identify where the bleeding was coming from? 15 A. My medical knowledge and experience. 2 ~~ A. No, I believed that he couldn't identify it. :~ ~ Q. Well, what experience would that be, Doctor? 21 Q. Okay. So why don't you put an arrow to the 21 You've never seen an injury to an axillary artery. 2~ sentence where you believe that the injury occurred to 22 A. Well, Pve seen injuries to bigger arteries 2~ the nerves in Exhibit No. 8? L= than the axillary artery. 29 MS. LUNCEFORD: Objection,form. 24 Q. Such as? 25 MR. ASSAAD: Basis? ~5 A. The femoral artery. Page S'7 Page 3~ 1 MS. LUNCEFORD: It assumes facts not in 1 Q. And how long did it take to put pressure on 2 evidence and assumes that this expert can do that based 2 the femoral artery to stop the bleeding? 3 on Dr. Holt's op report. 3 A. You can stop it with one finger, too. 4 Q. (By Mr. Assaad) Please, do it, sir. 4 Q. For how long did you have to keep pressure on 5 A. You want m e to put -- what do you want m e to 5 it so you don't have to -- put, an arrow? 5 A. It varies. 7 Q. Yes, on the sentence you read before where you 7 Q. And in those cases, after you stop the 8 believe that the injury to the nerve occurred; at what bleeding, did you do any repair to the artery? To the point in the operation? 9 femoral artery? 10 MS. LiJNCEFORD: Objection, form. lu A. If it was injured, yes. 11 A. (Indicating). 11 Q. Okay. Well, if you stopped the bleeding, why 12 Q. Can you underline the area in which you 12 would you do the repair? 13 believe supports your contention that pressure was 13 A. Because the artery is injured. 14 applied to the axillary artery. 19 Q. Okay. In those cases in which you put 15 A. Okay. With another arrow? 15 pressure on the femoral artery, the bleeding stopped 1~ Q. Underline. 1 prior to doing the repair? 17 A. Oh,underline. (Indicating) 1 A. Sometimes it did; sometimes it didn't. 1~ Q. And can you circle the sentence that you 18 Q. Okay. The ones that didn't stop -- I'm 1a believe supports your contention that Dr. Holt 1 sorry. The ones that did stop, was it a significant ~4 identified the source of the bleeding. 2 t~ injury to the femoral artery? 21 MS. LUNCEFORD: Objection, form. 21 A. Yes. 22 A. I don't think he identified it. I mean, 22 Q. Such that a bypass was required? 2~ that's obvious he didn't. There was an axillary artery 23 A. I don't think I've done one where I had 24 injury and he never identified that. 24 to -- I had to do a bypass for, no. I think I was able 2~ Q. (By Mr. Assaad} How much pressure is required 25 to repair it. Actually, I take that back. Yeah, I had 23 (Pages 86 t.o 89) Magna Legal Services 199 01/09/2013 04:36:31 PM 713-755-1451 Page 24 / 62
Pa{~P °t~ Page ~~ 1 to put a graft in for an injury, yeah. So I had to do a 1 Q. So you don't have an opinion within a bypass, yes. L reasonable degree of medical probability? i Q. And in that instance were you able to stop the 3 A. It's difficult to say how -- I mean... 4 bleeding by putting pressure on it -- 4 Q. Let me ask it this way. 5 A. Uh-huh. 5 A. I mean, it's -- ho~~v much of his nonfunctioning Q. -- permanently? of his arm is nerve versus muscle and skin, I am not an 7 MS. LUNCEFORD: You need to answer "yes" 7 expert to testify to. So if the artery was repaired or'"no.° immediately, he might have not had as much muscle and ~• A. Yes. skin damage to his extremity. How much nerve damage 1C~ Q. (By Mr. Assaad) You stopped the bleeding 10 would have been saved, it's hard to tell. 11 permanently? 11 Q. Let's break it down. You've testified that 12 A. At that time, yes. 12 discharging Mr. Houston by Dr. Holt with a 1~ Q. Okay. 13 nonfunctioning left extremity was a deviation of the 14 A. That's... 19 standard of care? 15 Q. That's ~c~hat? 1~ A. Yes. 1~ A. I lost my train of thought. 1 Q. Okay. If he didn't discharge and complied 17 Q. Are you going to offer any standard of care 17 with the standard of care, would there be -- do you have 1a opinions with respect to Dr. Holt's operation? 1 an opinion within a reasonable degree of m edical 1~ A. No. 1 {~ probability whether or not that would have caused any 20 Q. So just to narrow things down, you're only ~!? difference in the outcome of this case? 21 going to testify or offer opinions with respect to the 21 MS. LiJNCEFORD: Objection, form. 22 time of the nen~e injury. And in your opinion it ~2 A. It's possible. 23 occurred during the operation, correct? 23 Q. (By Mr. Assaad) I asked within a reasonable 24 A. Yes. 29 degree of medical probability. 25 Q. You"re not going to offer any standard of care L5 A. I mean, yes. The longer an artery is Page ~1 Page 93
1 opinions with respect to the nurses, to Dr. Holt or 1 occluded, the more damage occurs to that extremity. So 2 anyone else? 2 the quicker you fix it, the less damage that occurs. So 3 A. I guess it depends on the question I'm asked, 3 if, yes, it would have been fixed on Friday instead of 4 whether I feel comfortable that I can give a medical 9 Monday, he would have less damage, yes. 5 opinion. 5 Q. When you say "less dam age," can you quantify c Q. Well, have you formulated any opinions that ~ that? 7 anyone in this case deviated from the standard of care? 7 A. It's hard. 3 A. I think Dr. Holt did. ~ Q. What -- can you -- feel free to look at the G Q. In what way? 9 medical records, Doctor. Can you indicate to me what 1u A. I think a surgeon that experiences a major 1v damage occurred to Mr. Houston as a result of the 11 bleed of greater than two liters on a patient during an 11 blocked axillary artery and not as a result of the 12 operation that usually does not cause much bleeding, and 12 injuries to the nerve which you have the opinion 13 that patient requires blood transfusions, and that 13 occurred during the operation? 14 patient at the time of his discharge is not having a 14 MS.LUNCEFORD: Objection, form. 15 functioning extremity and is still discharged hom e and 15 A. It's hard to tell. 15 the surgeon doesn't have any suspicions or curiosity to 16 Q. (By Mr. Assaad) So you can't? 17 investigate further where all that bleeding came from,I 1~ A. It's difficult to tell. 1~ don't think that's the standard of care. I think m ast 1~ Q. So you can't? Just answer the question. 1~ doctors would investigate that further. 1~ A. Repeat the question again. 20 Q. If Dr. Holt investigated further or 2 ~~ Q. Can you identify with a reasonable degree of 21 immediately obtained a vascular surgeon and repaired the 21 medical probability what injuries occurred to 22 axillary artery during the operation, do you have an LL Mr. Houston as a result of the blocked axillary artery 2~ opinion as to what the change or what the cause, the 2:~ in this case? 24 causal effect would have been on Mr. Houston? 24 MS.LLTNCEFORD: Objection, form. 25 A. It's difficult to say. 25 MR. ASSAAD: Basis?
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1 MS. LUNCEFORD: It is vague, confusing 1 anybody can tell you how much. L and assumes facts not in evidence. Q. (By Mr. Assaad) Can you identify any m edical 3 MR. ASSAAD: Okay. Withdraw that 3 records that support that opinion that there are muscles 9 question. ~1 that were lost due to the compartment syndrome that you 5 Q. (By Mr. Assaad) Did Mr. Houston have any identified? d injury, permanent injury as a result ofthe axillary MS. LITNCEFORD: Objection, form. 7 artery being blocked? 7 A. I'm not an orthopedic expert. You can ask the A. Yes. r orthopedic experts that. They're the muscle experts. 9 Q. What injury? ~~ Q. (By Mr. Assaad) When you talk about muscle 1 t1 A. I think he had motor -- muscle damage. 1 ~~ loss, are we talking about significant muscle loss? 11 Q. Motor or muscle, or both? 11 MS. LLTNCEFORD: Objection, form. 12 A. Muscle damage. 1~ A. I mean,that varies from person to person. 13 Q. Was that injury permanent? 13 I mean, one person, what they consider decrease in the 14 A. I don't know. 19 strength of their muscle, whether it's signiftcant or 15 Q. So let me ask the question again. Do you have 15 not, it depends on the person. 1F an opinion within a reasonable degree of medical 1~ Q. (By Mr. Assaad) Mr. Houston's lack of 17 probability that the axillary artery that was blocked in 17 functionality in his left extremity, is that -- would 1 ~? Mr. Houston caused him any permanent injury? 1~ you agree with me that it's primarily caused by the 1 `_-' MS. LUNCEFORD: Objection, form. 19 nerve damage? ~0 MR. ASSAAD: Basis? LG A. Is lack of function in that arm? Is that what LZ MS. LUNCEFORD: Same objection as 1 you said? LZ before. 22 Q. Yes. ~3 MR. ASSAAD: Can you please list them L3 A. I'm not an expert as far as nerve and muscle. 29 out? This is a different question. 29 And how much of his function is due to loss of nerve ., L5 versus due to loss of muscle function or muscle L ... MS. LUNCEFORD: It's the same question Page ~5 Page u'7
1 and the basis is: Assumes facts not in evidence, vague 1 capacity, I can't comment on. 2 and ambiguous with respect to the term "blocked axillary 2 Q. Doctor, I'm just trying to figure out, 3 artery." ~; the damage that was caused by the axillary artery injury 4 Q. {By Mr. Assaad} Did you understand my 9 that is solely a result of the axillary artery injury 5 question, Doctor 5 and not the nerve damage to Mr. Houston. A. No. ~ Is it correct to say that you cannot 7 Q. Okay. 7 offer that opinion within a reasonable degree of m edical 3 A. I don't understand your question. ~ probability? Q. Can you identify the permanent injuries that G A. I don't think anybody can. 1sJ Mr. Houston sustained as a result of the injury that 10 Q. So you can't offer that opinion within a 11 occurred during the operation to Mr. Houston's axillary 11 reasonable medical probability? 12 artery? 12 A. No. I don't think anybody can. i~ MS. LUNCEFORD: Objection, form. 13 Q. Doctor, would you agree with m e that the 14 MR. ASSAAD: Basis? 19 nurses failed to inform the physician regarding the poor 15 MS. LiJNCEFORD: Assum es that he 15 capillary refills that Mr. Houston sustained on January 1~ testified -- itjust assumes facts not in evidence, 16 8th and January 9th of 2009? i~ vague, ambiguous. 17 MS.LUNCEFORD: Objection, form. 18 A. Well,Imean -- okay. He had -- I mean,they 1~ A. No. 1d had to do compartment releases because ofthe --you 19 Q. (By Mr. Assaad) You don't believe that's a 20 know, because of the blocked axillary artery. And you 2 ~~ deviation of standard of care? 21 do compartment releases to try to spare the muscles from 21 MS.LUNCEFORD: Objection, form. 22 dying because of all the swelling from not having blood 22 A. I -- your statement is incorrect. The nurses 23 supply. 2~ did inform the physician. 24 I'm sure there is muscles that he lost 4 Q. (By Mr. Assaad) When? 2~ that he will never regain. How much, I don't think 25 A. In the PACU. 25 (Pages 94 t.o 97) Magna Legal Services 201 01(09!2013 04:36:31 PM 713-755-1451 Page 26162
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1 Q. Okay. What did -- are you talking about 1 A. Aware of patient's status. That's part of the Nurse Hicks? 2 patient's status. 3 A. I forgot the name of the nurse in the PACU. "~ Q. So you're assuming that Dr. Lam, an Q. Show me in the PACU record where the nurse 4 anesthesiologist, is doing the capillary refill and J informed the anesthesiologist regarding the poor s touching the patient and checking to see whether or not F capillary refills. 6 the patient is cold or hot? 7 A. Somebody feel free to help me. 7 A. The nurse is informing him of the patient's Q. Page 51 at the bottom. ~s status. And she is telling you what the patient's left MS. LUNCEFORD: Yeah. hand is like. That's part of the patient's status and 10 A. Okay. Patient admitted. I'll read her 1G she's telling Dr. Lam that. 11 notes. 10:55. Patient admitted. Reactive to name on 11 Q. So you're assuming that she told Dr. Lam that? 1L admission. Patient cool to touch. Blood pressure low 12 A. It states here that she's telling him that. 13 on admission. Fingers on left hand pale, cool to touch, 1~ Q. Okay. Look at 14:15. It says blood pressure 14 with poor profusion noted. 14 increasing very slowly. Dr. Lam notified of patient's 15 Q. (By Mr. Assaad) Do you believe the standard 1~ status. lti of care required a nurse to inform the doctor ofthat 1~ A. I m can she -- she -- 17 information? 17 Q. Did you read that? I ha~~en't asked the 1~ MS. LUNCEFORD: Objection,form. 1A question yet. Did you read that? 19 A. Yes. At 11:15 Dr. Lam here, aware of 1° A. I read that, yes. 7~ patient's status. Left hand fingers feel cold. Still 2 ~~ Q. Do you have an opinion as to what the nurse z1 pale. Cold to touch. Poor cap refill. ~1 informed Dr. Lam at 14:15 hours? 22 Q. (By Mr. Assaad) What time are you reading? 22 A My opinion is the entire patient's status. 2_' 11:15? 2~ Q. The entire patient's status? 24 A. 11:]5. 24 A. Yes. 25 Q. Do you know what kind of doctor Dr. Larn is? 25 Q. Okay. So she's only referring to, in the note Page ua Page lU1
1 A. I believe he's an anesthesiologist. 1 of 14:15, the blood pressure increasing very slowly? L Q. Okay. And would you agree with me that an 2 MS.LUNCEFORD: Objection,form. 3 anesthesiologist is more concerned -- is concerned with 3 A. That's all she wrote, -- the anesthesia part of the patient, the heart rate? ~ Q. (By Mr. Assaad) Okay. J A. In most hospitals -- this patient was in the 5 A. --but she's telling Dr. Lam about his post-anesthesia care unit, PACU, it's called, status. abbreviated. Anesthesia controls the PACU. All right. Q. Okay. Have you talked to Ms. Hicks? O If a patient is having problems, the nurses usually A. No. 4 inform the anesthesiologist. `~ Q. You agree that, when a nurse has an abnormal 1~ Q. Well, 1 1:15 it says patient alert, correct? 1 ~~ finding, that she should notify the doctor? li A. Uh-huh. 11 MS. LUNCEFORD: Objection,form. ZL Q. Yes? Is that a "yes"? 12 A. It depends on the finding, the gravity ofthe 13 A. Sorry. Yes. 13 finding. 14 Q. Okay. BF coming up slowly? 14 Q. (By Mr. Assaad) Do you agree that nurses are ZJ A. Yes. 15 advocates of the patient? 1S Q. Says Dr. Lam here, aware of patient's status, 15 A. Yes. 17 correct? 17 Q. They're the eyes and ears of the doctor? is A. Yes. 1 A. Yes, they can be. 19 Q. Is it anywhere there in this document that you 1G Q. They spend mare time with the patient on the 2 tl see it states that Dr. Lam is aware ofthe left hand and 20 floor than the doctor does? 21 forgers feel cold or the capillary refills? 21 A. Usually. LL A. Yeah, the next sentence, a little bit further 22 Q. A lot more time? 2~ down, its says, "States left hand,fingers feel cold, 23 MS.LUNCEFORD: Objection,form. 24 feel cool to touch with poor capillary refill." 2~ A. Usually, but it depends. ZJ Q. Does it say Dr. Lam was aware of that? 25 I've been in cases where I've bean at the 2~ (Pages 98 t.o 101)
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Pa{~,~ 1~_~? Page 1~~4 1 bedside 24 hours and no nurse has been at the bedside 1 clinical picture. 2 for 24 hours. So it depends. 2 Q. (By Mr. Assaad) Okay. Well, would you agree "? Q. {By Mr. Assaad) Let's take the bell curve and with m e, Doctor,that if there is no radial pulse in one 4 take away the 10 percent, you know, the times -- those ~ of your patients, you want to be notified immediately? ~ times you spent with the patient and the 10 percent with 5 A. If the patient had a radial pulse before and the nurse, you spentmore time with the patient and you they lost it, yes. 7 look at the average, would agree with me on the average 7 Q. Okay. nurses spend a lot more time with the patient than the A. There are patients that don't have radial G doctor? 5 pulses. 1u A. Yes, but that's not what you asked m e 1 Q. Doctor, let's turn to page 66. Do you agree 11 earlier. 11 at 150 hours the radial pulse was taken in the right 12 Q. Okay. 12 and left upper extremity and it was indicated as normal? 13 A. I was answering your question according to how 13 A. I think that's what she m eant by those 14 you asked me. 19 markings, but it's hard to know for sure. 15 Q. Okay. Do you believe that the standard of 15 Q. At 2000 you have a "P" for the right and a 15 care requires a nurse to inform a doctor if there is a 1r negative far the left? 17 poor capillary refill? 17 A. Yes. 18 MS.LLTNCEFORD: Objection, form. 1+~ Q. That's a change in the condition. Do you 1'~ A. It depends on the whole clinical picture. 15 agree? zo Q. (By Mr. Assaad) Okay. In this case do you 20 A. Yes. 1 believe that the standard of care requires the nurse to 21 Q. As a doctor, would you want to be notified z? inform a doctor regarding Mr. Houston's poor capillary 2~ immediately of the change in condition of a radial refill? 23 pulse? 24 MS.LITNCEFORD: Objection, form. 24 MS.LiTNCEFORD: Objection, form. z5 A. Yes. 25 A. Yes. Page 1~3 Page 1U5 1 Q. {By Mr. Assaad) Do you agree with me, Doctor, 1 Q. (By Mr. Assaad) Okay. Do you see anywhere in 2 that postoperatively the neurovascular checks are very Z the records here that this nurse notified anybody 3 important? 3 regarding the change in the pulse of Mr. Houston on 4 A. Yes. 4 January 8,2009 at 8 p.m.? 5 Q. Okay. And we're talking about notjust in the 5 A. I did not. PACU but also on the floor, correct? Q. Would you agree with me that that's a 7 MS. LUNCEFORD: Objection, form. 7 deviation of standard of care? 3 A. Yes. 3 MS. LITNCEFORD: Objection, form. MR. ASSAAD: Okay. Basis? ~! A. I can't speak to the standard of care for lu MS.LLTNCEFORD: It's outside the area of 10 nursing. 11 this witness' expertise. He's not a nursing expert. He 11 Q. (By Mr. Assaad) But you could to the standard 12 told you that. 1~ of care for an orthopedic surgeon? 13 Q. (By Mr. Assaad) Doctor, you deal with nurses 13 MS. LUNCEFORD: Objection, form. 14 on a daily basis, correct? 14 A. No. 15 A. Yes. 15 Q. (By Mr. Assaad) Oh, you can't? 15 Q. And you have expectations from nurses on what 1 A. No. 1'7 you want them to inform you regarding your patients, 17 Q. Okay. So you agree with me you're not 18 correct? 1 qualified to offer any opinions with respect to the 15i A. Yes. 19 standard of care regarding an orthopedic surgeon? 20 Q. Okay. As a cardiothoracic surgeon if at any 20 MS. LLTNCEFORD: Objection, form. 21 point after a surgery that there is som e issue with the 21 A. When he perform s orthopedic procedures, no; 22 vascular issue of your patient, you want to know 2 but as a doctor, yes. 23 immediately, correct? 23 Q. (By Mr. Assaad) Well -- 24 MS. LUNCEFORD: Objection, form. z9 A. The standard of care for a doctor. 25 A. It depends on the gravity and the whole 25 Q. So you're avascular -- you're a
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Pages 1~a5 Page 10° 1 cardiothoracic surgeon, a vascular surgeon, correct? 1 days after the surgery? _' A. Correct. A. I said that -- ~~ Q. Vascular integrity is your expertise, correct? :~ Q. You criticized him for it? ~ A. Correct. 4 A. Yes. 5 Q. You can't tell me --you can't sit here today 5 Q. Okay. So it's not okay for him to do an and offer an opinion regarding what is the standard of j operative report four days after the surgery; but it's 7 care required by a nurse in assessing the neurovascular ? okay for a nurse not to document if there's, you know, issues of a patient? other things better to do? 5 MS. LUIvCEFORD: Objection, form. 9 MS. LUNCEFORD: Objection, form. 10 A. No. I'm not a nurse. 1 {~ A. To dictate an op report takes ten minutes 11 Q. {By Mr. Assaad) Well, do you work with 11 max. And most doctors can dictate an operative report 12 nurses? 12 in two or three minutes. So it's hard to believe -- for 13 A. Yes. 1=~ me to believe -- but it can happen. I'll give you 14 Q. Okay. Do you ha~re expectations of nurses? 1~ that -- that a doctor is so swamped the entire day that 15 A. Yes. 15 every once in a while he doesn't dictate his op report 1~ Q. Okay. If one of your nurses did not inform 1: immediately after. But that can happen. 17 you that a radial pulse was no longer present in a 17 Q. (By Mr. Assaad) How long do you think -- 1~ patient, would you think that was acceptable? 1~ Imean, you agree with me that a nurse that's monitoring 19 A. No. 19 a patient should check these things listed on page 66, 20 Q. Would you talk to that nurse? ~~ correct? 21 A. Yes. ~1 A. Yes. 22 Q. What would you tell that nurse? LL Q. Okay. And you're net saying that she should ~~2 ~; A. That she needs to call me. not be doing these things? '2 4 Q. Okay. Do you employ any nurses? 24 A. No. 25 A. No. ~~ Q. You're just saying documentation is not as Pages 1117 Page 1U~
1 Q. If you were to employ nurses, would you employ 1 important as actually her doing herjob? 2 Nurse Schumacher? A. Exactly. 3 MS. LLTNCEFORD: Objection, form. 3 Q. Well, how long do you think it takes after she 4 A. I don't know. I would have to interview her 9 checks the patient to go down the column and just go 5 first. tlu~ough hare? c Q. (By Mr. Assaad) So her Kevorkian remark ~~ MS. LUNCEFORD: Objection, form. '7 wouldn't bear anything on whether or not you hired this 7 A. I don't know how many different -- I mean, 8 person? it's sad to say, you should look at the amount of 1 MS. LiTNCEFORD: Objection, form. G different papers that nurses have to fill out. It's 1n A. I wasn't there. I don't know the context, 1U just not one piece of paper. I mean, it's incredible 11 how it --you know,things can be taken out of context 11 nowadays how many different documents they have to fill 12 sometimes. 1~ out while they're taking care of the patient. And I 13 Q. (By Mr. Assaad) Do you expect your nurses to 13 think it's unreasonable. 14 chart in the record -- 14 Q. Do you think there should be more nurses in 15 MS. LLTNCEFORD: Objection, form. 15 the hospital? 1~ Q. {By Mr. Assaad) -- that you're working with? 15 MS.LUNCEFORD: Objection, form. 17 A. My expectation of my nurses is the patient 17 A. Yes. 1~ comes first. And we're in an era where they stress 1 Q. (By Mr. Assaad) Okay. Doctor, do you agree 1o documentation. And that's not what's important. 1 ~~ with me that from the tune Mr. Houston's on the floor to 2C~ What is important is to take care of the 20 the time that he"s discharged that there are many 21 patient first. And a nurse that is busy filling out 21 entries into the medical record of an abnormal capillary 22 paperwork instead of taking care of the patient is not a 2~ refill? 2{ good nurse. That's my view. 2~j A. Yes. 24 Q. Well, you criticized Dr. Holt for not 24 Q. And do you agree with me at no time is there 2w dictating his operative report until three days or fours 25 anything in the record or even the deposition testimony
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1 of some of these nurses that Dr. Holt or any other 1 A. Yes. 2 doctor was notified of the abnormalities? Q. Why did you put a star near that? "~ MS.LLTNCEFORD: Objection, form. 3 A. That Dr. Holt appropriately told the patient 4 MR. ASSAAD: Basis? 4 of the risks of the surgery. 5 MS.LTJNCEFORD: Assumes facts not in 5 Q. Okay. On page 15,the PACU op center evidence, mischaracterizes his prior testimony post-anesthesia -- 7 concerning PACU notes. 7 A. Uh-huh. Q. (By Mr. Assaad) I mean --Fair enough. ~ Q. -- you highlighted "H and H stet" and then ~ All right. After -- on the floor -- from the tim e the "given Heparin 500 ccs. I.V."? lu patient is on the floor to the time the patient is 1~ A. Hespan. 11 discharged, Mr. Houston, there is no evidence or no 11 Q. Or Hespan. Why did you highlight that? 1~ entries into the medical record or no mention in any of 12 What's the significance ofthat? 13 the depositions that any doctor was informed of the 13 A. I mean,it kind of speaks to the significant 14 capillary refill results? 1~ injury that the patient had,they were giving him still 15 A. From admission to the floor to discharge? 15 a lot of fluid resuscitation. I mean, he got three 16 Q. Yes. 10 liters in the operating room. Then he got another three 17 A. Correct. I did not see any documentation -- 17 liters of fluids in the PACU. That's extremely 1~ Q. Do you agree -- 1~ unusual. I mean,that shows you that there was an issue 1 ~~ A. -- except there was one -- one instant of a 1`~ with an artery. 20 telephone order from Dr. Holt to a nurse at 4:30 about a ~u Q. Do you believe that he was still -- when do 21 medication. He gave a telephone order fora 21 you believe the bleeding stopped? What's your opinion? 22 medication. I don't know the full extent of that z2 A. I mean, when you have an injury and you have a 2~ conversation. I m ean,the only thing that was 23 clot, if you start m oving the arm or anything like that, 24 documented was the medication. But I don't know if the 2~ that could cause bleeding; so he probably had ongoing 25 nurse told him anything else about the patient's L5 some amount of blood loss throughout the period that the Pages 111 Page 113
1 status. 1 artery was injured. 2 Q. Well, so actually the nurse had an 2 Q. Well, do you disagree with Dr. Holt's 3 opportunity, had Dr. Holt on the phone to inform him of 3 operative report that the bleeding stopped during the 4 that status? 4 operation? 5 A. Right,I don't know if she did or did not. 5 A. No. fi Q. If she didn't, would that be a deviation of 6 Q. You agree with that? 7 standard of care? 7 A. Yes. .3 MS. LLJNCEFORD: Objection, form. ~ Q. Okay. But -- Q. (By Mr. Assaad) You may answer. 9 A. Bleeding that he could see, yeah. 1u A. I can't speak to the standard of care of the 1u Q. When you say there was -- do you have any 11 nursing. 11 evidence to support your contention that there was 12 Q. okay. Can I see that? 12 ongoing bleeding? 1~ MS.LUNCEFORD: You need a break or 13 A. Yes. 14 anything? 19 Q. What evidence? 15 THE WITNESS: No,I'm good. Just power 15 A. The fluid resuscitation. He continued to 15 through. 15 require fluids. 17 Q. (By Mr. Assaad) On your page 66 you write in 1? Q. In the PACU? 1 ~~ red "no palpable left radial"? 1~ A. In the PACU. 11~ A. Yes. 1G Q. What about on the floor? 20 Q. What was the significance of that note? 2U A. On the floor I don"t recall how much fluid he 21 A. What we talked about earlier, that there was a 21 got. And he was tachycardic the whole time he was in 22 change. 22 the hospital, his pulse was -- so it shows you that 23 Q. Okay. On page 5 you put a star and L3 there was still some active bleeding going on. 24 highlighted damage to nerves and then block vessels and 24 Q. Did any of the nurses notify Dr. Holt or any 25 informed consent? 2~ other doctor that Mr. Houston was tachycardic?
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1 A. It doesn't look like it by the documentation. 1 A. Well,I think his blood pressure was also an 2 Q. Would that be something that's important to the low end of the scale, besides being tachycardic. 3 inform the doctor? 3 Q. Okay. So those two things? 9 A. Yes. 4 A. 4~es. 5 Q. So besides the fluids that were given in the 5 Q. And based on those two, it's your opinion PACU,is there any evidence on the floor that he was within a reasonable degree of medical probability that 7 still bleeding? 7 the cause of him being tachycardic and the slightly law ~~ A. Well, he required a blood transfusion. R blood pressure was a result of him bleeding? 5 Q. At what point in time? 5 MS. LiTNCEFORD: Objection, form. 10 A. Wasn't that on the floor when he received it? ltd A. Yes. 11 Q. I don't think so, but -- ii Q. (By Mr. Assaad) Okay. Was there any evidence 1~ MS. LUNCEFORD: PACU. ~~ when they went in to do the artenogram that there was 13 A. In the P?.CU? 13 any bleeding? 14 Q. (By Mr. Assaad) PAGU. 14 A. Yes. 15 A. All right. In the PACU. Sorry. I couldn't 1~ MR. ASSAAD: Mark this E~ibit 9. 1 ti remember exactly when he gave the blood transfusion. 1 (Exhibit No. 9 m arked.) 17 Q. (By Mr. Assaad) So he got his fluids in the 17 Q. Doctor, whatI have marked as Exhibit 9 is the 1~ PACU,was released to the floor? 1 operative report of Dr. A~artin on January 12, 2009, 19 A. Uh-huh. i `~ where an arteriogram was done by Dr. Martin? z ~~ Q. Do you have any evidence that he was A. Uh-huh. 21 continuing to bleed while he was on the floor? ~1 Q. Do you agree that's what Exhibit 9 is? 22 A. He was tachycardic. ~L A. Yes. 2 ~~ Q. Now, when you say continuing to bleed, are we ~3 Q. Can you indicate to me in this document what 24 talking about a high, like, a strong bleed or a slight Z9 supports your opinion that the axillary artery was still 25 bleed or what? L5 bleeding at the time of January 12, 2009? Pages 11~, Page 11?
1 A. Just slight, oozing bleeding. 1 A. "Injection of contrast demonstrated clearly 2 Q. So how much blood do you think he was losing 2 extravasation into the tissue surrounding the vessel." 3 or do you have an opinion? 3 Two sentences before the one you have 4 A. Well,I mean, he required another blood 9 underlined. y transfusion when he came back in for the other surgery, 5 Q. Two sentences where? Sorry. so he continued to bleed. If he hadn't, he wouldn't 6 A. The two sentences before the one you have 7 have required another blood transfusion when he was 7 underlined. "Injection of contrast demonstrated clearly 8 readmitted. extravasation into the tissue surrounding the vessel." Q. Do you know when he obtained the blood .°, Q. And the contrast, you agree, is done through 10 transfusion? Was it before or after the surgery by 1U the catheter, correct? 11 Dr. Martin on the 12th? 11 A. Yes, I believe that's how he did it. 12 A. I can'tremember exactly. lz Q. Okay. And he is doing the injection here of 13 Q. Doctor, there are many reasons why a patient 13 the contrast after the sentence that says,"However, on 14 could be tachycardic, correct? 14 passing the glide wire and catheter, the wire and 15 A. Yes. 15 catheter were easily passed into the extraluminal 1F Q. One is loss of blood? 15 space"? 17 A. Yes. 17 A. Right. 1~ Q. Another is pain? 1.3 Q. Okay. So the catheter is basically outside 1n A. Yes. 15 into the extraluminal space and the contrast 20 Q. Stress? 2Ci demonstrates that it's outside the extraluminal space, 21 A. Yes. 21 correct? 22 Q. Besides the patient being tachycardic, is 22 A. Right. 2{ there any other evidence that you could point to that 23 Q. Okay. And it's your opinion that because the 24 Mr. Houston was bleeding while he was on the floor or 24 catheter is going outside the vessel into the 25 anytim e up until the bypass surgery done by Dr. Martin? 5 2 extraluminal space and the injection of contrast 30 (Pages 114 t.o 117} Magna Legal Services 206 01/09/2013 04:36:31 PM 713-755-1451 Page 31!62
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1 demonstrated that it was outside the extraluminal space, ~ 1 A. He went to the areas that weren't injured. Z that that is indicative of the continued bleeding that 2 I mean, he went proximal to the injury and dissected the ~' you mentioned before? 3 normal axillary artery there and then distal to the ~ A. Yes. 4 injury dissected the normal artery there and then Q. Okay. Was it a significant bleed? 5 bypassed it. He didn"t explore the area where it was MS.LUNCEFORD: Objection,form. 6 injured. 7 Q. (By Mr. Assaad) Can you tell one way or the 7 Q. Well, how much blood do you think was lost other? between -- from the bleed that occurred throughout the A. When -- when -- repeat your question. 9 $th, 9th, 10th, 11th and 12th? l+? Q. Was there a significant bleed at the vessel at 1 ~~ MS. LiTNCEFORD: Objection, form. ~i 11 this point on January 12, 2009? 11 A. Not a lot. I mean, but there was some. ~ 12 A. I think he had continuous bleeding. 12 Q. (By Mr. Assaad) When you say "not a lot," a 13 Q. Where was all the blood going? 1 ~j liter? 14 A. Into his arm. That's why it was swollen. 19 A. No. No,I wouldn't think so because I mean, 15 Q. Was there any, like, hematoma found in his arm 15 it's an enclosed compartment so the blood has no 1~ at all? 1 space -- nowhere to go. There is muscles and fat and 17 A. Yes,I believe they did -- he did have a 17 everything else there, so it's not going to be a liter. 18 hematoma in his arm. 18 Q. Would the blood cause any compression on the l r+ Q. And where did you obtain that information 19 nerves? 20 from? 20 A. It can, yes. ~'1 A. I think from Dr. Martin's notes. 21 Q. And that would be in the brachial plexus area? 22 Q. Operative note? L~ A. Yes. ''° A. No. LJ Q. So it's possible that the blood that was 9 Q. What note? 24 bleeding out of the axillary artery for four days was 25 A. When he examined him, when he said the arm was L 5 putting pressure on the brachial plexus nerves? Pages 11° Page 121
1 swollen, I think he mentioned that it was from a 1 A. Yes. 2 hem atom a. ~ Q. Do you have an opinion within a reasonable 3 Q. Can you point to that in the medical records 3 medical probability as to why it wasn"t the blood that 4 that supports that? 4 was seeping out that was putting pressure on the 5 A. Let me see. Can I see that, see which number 5 brachial nerve that caused the nerve injury and not -- 5 Dr. Martin -- it says here on his consultation he was o compared to the iatrogenic injury caused during the 7 noted to have more than expected swelling about the 7 operation^ 3 shoulder. So that swelling I think goes to a hernatama, A. I mean,I go back to that he never had any the blood that was bleeding. ~ function return since the time ofthe operation. He 1u And in his impression, left upper 1u never regained anything that whole time, so I think the 11 extremity weakness, numbness following recent left ~1 injury occurred during the operation, 12 shoulder surgery with an episode of significant 12 Q. Can you go to page 73. And before I ask you 1"~ intraoperative bleeding. Of concern tha patient m ay 13 this question, let's talk about the nerve block real 14 have a significant hem atom a or pseudoaneurysm at the 19 quick. I understand you said, you know, in eight to 15 operative site. 15 twelve hours it should wear off. Is that what your 16 Q. At the operation was there any hematoma found? 16 testimony was before? 1~ A. I think he did not explore the hem atom a. He 1 A. Yes. 1~ decided that on the angiogram that the injury was too 18 Q. You've heard testimony that a nerve block 1 ~~ big and he decided to go ahead and do the bypass, so he 14 could last up to 24 hours? Have you seen that in a 2 C~ didn"t e~.plore the injury or the -- or the hematoma that 2U deposition? 21 would be surrounding it. 21 A. I saw that in a deposition. 22 Q. So you don't believe --you don't think when 22 Q. Do you disagree with that? 23 you have to dissect out the axillary artery to do the L3 A. It's highly, highly unusual. So ifyou 24 bypass that you would not be able to see if there was a 24 have -- if you've done a block on somebody and in 24 25 hematoma in the area of the bypass? 2 hours it's still in effect, it should set offsome
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Pa+fie 122 pare 1~4 1 alarm s -- you know, alarms in your head that m aybe '1 caused iatrogenically during the operation cannot be z something else is going on. L true? .~ 3 Q. Okay. Do you sea that on January 9th at 5:00 A. No. 4 in the rn orning it says, "No changes noted except 4 MS. LLTNCEFORD: Objection, form. improved movement with left hand and fingers"? 5 A. No,I disagree. I mean,this is a very J A. Page 66, you said? I'm sorry. nonspecific statement. I didn't -- and, you know, every 7 Q. 73. 7 nerve to the arm wasn't injured. And it doesn't -- you A. Oh, 73. Okay. Yes. know, it doesn't say which movement she -- the patient G Q. Do you agree that there is a note there 5 was making. And as we know, the nerve,the damages to 1u that -- a nurse has noted there was an improvement with 1~ the nerve was graded. Some were worse, some were 11 the movement of the left hand? 11 better. So I mean, it's impossible to tell. 1z A. That's what she wrote. 12 Q. Do you know whether or not there was 13 Q. Do you disagree with that note? 13 improvement in Mr. Houston's left extremity with regard 14 A. She's the only nurse that ever documented any 14 to movement on January 9th on the morning -- after 15 movement in the hand. 15 Dr. Holt saw Mr. Houston? 1b Q. So if there was improvem ent with the left hand 16 a. No. 17 and fingers, what's your explanation? 17 Q. Why not? 18 MS.LLTNCEFORD: Objection, form. 1~ A. There is no documentation of that. is A. What's my explanation of what? 1 Q. There is actually no documentation at all 20 Q. {By Mr. Assaad) Yeah. You said there was no 2u regarding the left extremity, correct? 21 improvement in the left extremity -- 21 A. Correct. zz A. Right. L2 Q. So sitting here today, based on the medical 2.? Q. -- as a result, because that"s why you 23 records, we don't know? 24 believed that the injury occurred iatrogenically during 2~ MS. LLTNCEFORD: Objection, form. 25 the operation? L5 A. I mean,he -- according to Dr. Holt's Pages 123 Page 125 1 A. Right. 1 deposition, there was -- he thought it was -- the block z Q. Okay. Now,there's a note here less than 24 2 was in effect and that's why the arm wasn't working, 3 hours after the operation -- 3 Q. (By Mr. Assaad) Okay. Let's go to page 134. 4 A. Uh-huh. 9 A. 134? c J Q. -- that shows that there is improved movement 5 Q. Yes. The top note, Dr. Holt's note of 5 in the left hand? C~ January 13, 2009, at 5:50 in the morning says; "Status 7 A. Right. 7 past-axillary artery bypass, starting to move fingers." J Q. So how can you correlate the two? ~ Do you agree that the ability to m ove L'~ A. You take -- 9 fingers is an improvement in Mr. Holt's -- or 1 ~~ MS. LUNCEFORD: Objection, form. 1v Mr. Houston's condition on January 13, 2009? 11 A. You take preponderance of the documentation. 11 A. I believe so. i~ The preponderance of the documentation shows no movement 12 Q. Okay. And do you agree that it was after the ZJ in the arm. I take Dr. Holrs deposition where he said 13 bypass was done on the axillary artery? 14 there was no function in that arm; it didn't move,it 19 A. Yes. 15 didn't do anything and he said it was the scalene 15 Q. Do you agree with me that the -- based on this 1r block. The only place in this entire documentation is 16 note and what's occurring at this time, that the 17 that one line by that one nurse. Every other nurse 17 axillary artery and the lack of blood flow to le documents that there was no movement. 18 Mr. Houston's left extrem ity was having an effect on his IG Q. So would you agree with me -- 19 nerves? 2D A. And Dr. Holt testified to that. 2 ~:~ MS. LiTNCEFORD: Objection, form. 21 Q. Okay. So you agree with me that, if there was 21 A. Repeat your question. 2L improvement at 5:00 in the morning in the movement of 22 Q. (By Mr. Assaad) That the lack of blood flow ~~ Mr. Houston's left extremity, ifthat fact istrue, -- 2 as a result of the a~llary artery being totally 24 A. Uh-huh. 24 occluded was having an effect on his nerve function? 25 Q. -- then your opinion that the nen~e injury was ~5 MS.LiTNCEFORD: Objection, form.
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P~{~P 125 Page 1~8 t A. It's hard to tell whether his nerve function 1 Q. Well, was it a passibility or a probability? 2 or his muscle function. His muscles didn't have any L A. Forme it's a probability. That's my '' blood supply when the axillary artery was occluded,so 3 opinion. 4 when youprofuse them,they have some muscle supply now. 4 Q. Okay. But for some other doctors thatmight .. Q. (By Mr. Assaad) Were the muscles not supplied 5 be a possibility? with the capillaries as well; capillary blood? ~ MS. LUNCEFORD: Objection, form. A. Yes, they were. 7 A. You would have to ask them. ~? Q. So they did have blood supply? R Q. (By Mr. Assaad) And just to clarify 1 A. Yes, but mazginal. ThaYs why he -- further 9 something, Doctor, let's go to page 154, the transfusion 1~ down it says "areas of necrosis." So he was -- his arm 1~ records. 11 was dying on the palm and the dorsum. So he had areas 11 A. Uh-huh. 12 that were dying because the blood supply was not quite 11 Q. You agree with me that these transfusions were 1s enough. 13 given in the evening on the 12th after the surgery was 14 Q. Yeah, his skin was dying, correct? 14 perform ed by Dr. Martin? '15 A. Uh-huh. 15 A. Transfusion started at 5:35. And what tim e L Q. His muscles were dying? 15 was the operation? Remind me. 1~ A. Uh-huh. 17 Let's see. Where is the nurse's note 1~ Q. Yes? 1d from the second operation? 1° A. Yes. 1 r-~ MS. LUNCEFORD: I don't have that one in 2~ Q. His nerves were dying? L ~~ here with m e. z1 A. Yes. 21 A. I mean, or the hospital records. We need the 22 MS. LUNCEFORD: Objection, FOTII~. LG anesthesia record to see what time before I could answer 23 Q. (By Mr. Assaad) Okay. And you would agree 23 that for sure. 24 with me, Doctor, that it was also a concern of 29 MS. LLTNCEFORD: The operative report? 25 Dr. Martin that there could be compression of the L5 A. Anesthesia record -- no. It was during the Page 127 Pale 129
1 neurovascular bundle at the brachial plexus? If you 1 operation. Before, you know -- no, it wasn't after. 2 want to look at page 144. 2 Q. (By Mr. Assaad) I'm sorry, you're right. 3 A. Yes. 3 I apologize. It was during the operation. 4 Q. Now,Mr. Houston was seen by an orthopedic 4 A. Well, I mean, actually, no, it was before the 5 surgeon, a vascular surgeon, a neurologist, had an EMG, 5 operation because the operation started -- c plastic surgeon, many nurses, many other doctors 5 Q. What page are you looking at, Doctor? 7 throughout this course and afterwards. 7 A. 172, anesthesia time 16:45 to 20:55 and the 8 Do you recall any or seeing any evidence 8 blood transfusion was started at 17:35. or anyone indicating that the injury to his e~remity is 9 Q. So it was after anesthesia started? 1u a result of nerve damage that occurred during the 1u A. Yeah. So it was just after they put him to 11 surgery? 11 sleep they started giving hun blood. 12 MS. LUNCEFORD: Objection, form. 12 Q. Was that normal in that type of surgery? l :s A. I don't remember anybody else mentioning that, 13 A. If the blood count is low to begin with and 14 no. 1~ you're worried that the patient's bleeding, yeah, you 15 Q. (By Mr. Assaad) And you're the only one that 15 start the blood before you even... 15 has formulated that opinion that the nerve injury was 15 Q. Doctor, would you agree with me that if the 17 caused by damage to the nerves during the operation? 1? nerve injury in the brachial plexus nerve was not 1S MS. LUNCEFORD: Objection, form. 1~ iatrogenic during the operation, that more likely than 1~ A. I don't know that. I haven't spoken to the 1G not it was caused by ischemia and/or compression as a 2~ other doctors. 2U result ofthe axillary artery injury? 21 Q. (By Mr. Assaad) Okay. Well, you haven't 21 MS. LUNCEFORD: Objection, form. 22 spoken. Have you seen any --have you seen anything in 22 A. So you're saying that if we take out, there 23 the deposition testimony of any of the experts? ~:3 was no iatrogenic injury, if that's -- 24 A. I just said t17at earlier that I did not see 24 Q. The nerve -- 2~ anybody else mention that passibility. 25 A. That's not a possibility? 33 (Pages 12F t.o 129)
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Pa+~~ l:;i~ Page 1~'~ 1 Q. Yes. 1 it -- you know„ even though you hate to say it, the L A. That we knew that for a fact, which we don't? L doctor is the captain of the ship and it behooves a ~' Q. Just assuming that fact. 3 doctor to be -- when something out of the ordinary ~ A. Assuming that fact, then the injuries would be 4 occurs, to try to investigate it and try to be due to ischemia or compression? 5 suspicious if the course of the patient is not normal ~ Q. And/or? Could be both, could be one or the after something out of the ordinary has occurred, to try `' other? 7 to get to the bottom of it to m ake sure that it doesn't A. Yeah. Yes, I agree with that. ~ progress. So... 5 Q. Doctor, what is evidence-based medicine? 5 Q. You're -- 1v A. Evidence-based medicine is -- tries to look 10 MS. LiTNCEFORD: Let him finish. 11 at the literature. And they have a grading scale. And 11 MR. ASSAAD: Okay, Ms. Lunceford. 12 I don"t know the grading scale completely. But they 12 I thought he was done. 13 look at the evidence and then they grade the evidence, 13 A. I would say the majority of the fault is the 14 how accurate it is, what the preponderance is, are -- 14 doctor's. And I mean, it's hard to ask the nurses to 15 the studies that were done, are they the gold standard? 1~ make diagnosis. I mean, you can't; that's not what 1 ~~ Is it adouble-blind, randomized study? Did they 1r they`re there for. It's a doctor's responsibility to 17 perform that? 17 try to diagnose the patient, not the nurse's. ~~ And then grade the evidence and tell you 1 Q. (By Mr. Assaad) V~Jhat is the nurse's 19 based on the literature that's out there and the science 1 responsibility? 2~ that we have, this particular treatment, we think the Lu A. To care for the patient. 21 evidence is A,B, C,D evidence. 21 Q. So if one of your patients is bleeding out, 2~ Q. You're not perfect, Doctor, are you? You've L2 shows signs of bleeding and the nurses do not notify you 23 made mistakes? Correct? ~'3 and the patient dies in the middle ofthe night, you're 24 A. I'm human. ~q 100 percent responsible? 25 Q. Everyone makes mistakes. Have you ever been 25 MS. LL7NCEFORD; Objection, form. Page 131 Wage 133 1 wrong with respect to a patient's case of the cause of a 1 A. No,that's not what I said. 2 certain ailment? 2 Q. (By Mr. Assaad) You'rz the captain of the 3 A. Yes. 3 ship? 4 Q. Okay. Do you think that Dr. Holt is 9 A. Right. Right. 5 100 percent responsible for the injuries sustained by 5 Q. Okay. Mr. Houston? ~ A. But that's not what I said. I said -- 7 MS.LLTNCEFORD: Objection, form. 7 something extraordinary happened during the operation .3 A. It is an iatrogenic injury and those sometimes 8 that is not routine, that the patient bled significant G happen. As much as a doctor tries to do the best they 5 amounts of blood and required a blood transfusion even 1u can, sometimes there are things that occur during an 1 after the surgery. That should m ake a doctor very 11 operation or during tha care of the patient that causes 11 suspicious that something serious has happened and not 12 an injury to the patient. 12 just aspirin caused him to bleed that much. 1 "~ Mr. Houston, if he had not had this 1 ~~ Yes, is it possible aspirin can do that, 14 operation, this would not have occurred. So during the 14 yes, but very small possibility. And that shouldn't be 15 course of the operation, the injury sustained is what 15 the first one you think of. You should be thinking, 16 caused the damage to his left upper extremity. 16 wow, what -- what did I damage, what's happening and 1~ Q. So assuming that -- so it's your opinion that 17 what major artery could cause that amount of bleeding? 1~ the nurses that failed to notify the doctor on the 1~ And but, you know, nurses need to report 1 ~~ numerous occasions we discussed previously are not 19 to the doctors when there is abnormal findings;I 2~ responsible in any way for the injuries that Mr. Houston ~ ~.~ completely agree with you. And I expect that of my 21 sustained? 21 nurses. 22 MS. LUNCEFORD: Objection, lOISTI. LL Q. Going back to the question, do you believe the 23 A. It would have been better if the injury would 2:~ nurses are responsible, partly responsible for the 24 have been picked up sooner. What degree of fault was ^4 injuries sustained by Mr. Houston? 25 the doctor and what degree of fault with the nurses, 25 MS. LUNCEFORD: Objection, form.
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~ A. What do you mean by "sustained"? 1 A. I don't. Z Q. (By Mr. Assaad) Well, you criticized Q. (By Mr. Assaad) You don't think it's 3 Mr. Houston -- or Dr. Holt for discharging Mr. Houston 3 possible? 4 and failing to recognize that there was an issue. Okay? ~ A. I don't. Where that injury occurred to that 5 The nurses are also aware of the abnormalities or were 5 artery, I suspect, and with medical probability that he 5 aware of the abnormalities and also ultimately the ones injured nerves too with the injury to the artery. 7 that discharged the patient eight hours -- eight hours 7 That's my opinion. ,~ after -- they followed the orders of Dr. Holt to Q. If a neurologist testifies that the injury did discharge the patient eight hours after. You would 9 not occur iatrogenically but occurred as a result of 1~ agree? 10 compression or ischemia, would you disagree with the 11 A. Yes. 11 neurologist? 12 Q. So being aware of the condition and not 12 MS. LUNCEFORD: Objection, form. 13 notifying Dr. Holt, do they bear any liability? 1 ~3 A. Yes, I would. 14 MS. LLTNCEFORD: Objection, form. 19 Q. (By Mr. Assaad) And what education and 15 A. I'm not a lawyer. I don't low the legal 15 training do you have in neurology to be able to disagree 1~ requirements for liability and so forth. I agree that 1 with a neurologist formulating that opinion? 1~ the nurses should have called the doctor more often. 17 A. I know anatomy. I know where the injury 1~ I don't disagree with you there. 1~ occurred the nerves are intimately involved with the 1~ Q. Okay. Hypothetically, if the nurses 1 axillary artery there. To have a big injury to the 2v notified -- the floor nurses notified Dr. Holt of the ~~ axillary artery,I can't even think of haw he could not L~ poor capillary refills, do you have an opinion whether 21 have injured no nerves. 22 or not that would have changed the course of LG If you look at that picture -- like they c3 Mr. Houston's treatment? say, a picture tells a thousand wards. It speaks for 4 A. I hope so. I hope if a nurse had called 24 itself. I m eon,I can't even think of a way. 25 Dr. Holt and said, The capillary refill is still poor, 25 Q. Are you saying Exhibit 7 in Netter is the Page 1'?~~ Page 13'7 1 that he would have come in and ixnTestigated fw-ther. 1 actual anatomy of Mr. Houston? 2 ButI don't know that for a fact. Especially after A. No. 3 everything that's happened in this case, it makes me 3 Q. Okay. And in fact, you would agree with m e 9 wonder about Dr. Holt. 4 that everyone's anatomy is different, correct? 5 Q. Do you think Dr. Holt would have ignored that? 5 A. Yes. A. I don't know. Q. Okay. Nerves are not al~~vays in the same 7 Q. Okay. 7 places in every patient? ~ A. Itjust makes me wonder. P A. The major nerves almost always are. 5 Q. If the nurses notified Dr. Holt and he came in W Q. Now, sitting here today, you can't tell m e, to 1 ~~ and ordered a vascular consult on January 8th, and the 1i7 summarize it, from the evidence that you saw whether or 11 surgery was done on 7anuary 8th, what effect would that 11 not the nerve was lacerated, correct? Is that correct? 12 have on Mr. Houston's present condition? 1~ A. Correct. 13 MS.LITNCEFORD: Objection, form. 13 Q. You don't know whether or not the nerve vas 19 A. I mean, it would have been better for him. 14 stretched, correct? 15 I mean,he wouldn't have had the necrosis, he wouldn't 15 A. Correct. 1o have lost muscle, you lrnow, and maybe -- maybe some of 1 Q. You don't know whether or not the nerve was -- 17 his nerve problems would have been better, too. 17 had acontusion or some type of injury, you know, 13 Q. Would he be able to move his arm? 1 iatrogenic injury such as a contusion? 1'~ MS.LUNCEFORD: Objection, form. 19 A. Contusion is unlikely because usually a nerve c0 A. I don't know. 20 will recover from a contusion. And we're far enough out 21 Q. (By Mr. Assaad) Or shoulder? 21 now from this injury that, if it was from a contusion, 2 A. I don't know. 2L his nerve injury, that he"d have function back in his 23 Q. Do you believe it's possible that he could Z3 arm by now if it was a contusion. 2~ have had a full recovery and no damage at all? 29 Q. Well, you also said a nerve could also improee 25 MS.LUNCEFORD: Objection, form. 25 from a stretch injury?
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1 A. Yes, they can. 1 injury of some kind had occurred because the patient Q. Okay. ~ bled over two liters in the operating room,required 3 A. But it depends on how much of a stretch ~ blood transfusions, and then had a nonfunctioning 9 injury. 4 extremity the next day; I think it should have set some 5 Q. So in this case you could rule out a 5 alarm bells off and he should have investigated it o contusion? j further instead of saying, Oh, it's the scalene block. 7 A. Uh-huh. 7 Q. At what point in tim e do you think that he ~ Q. Correct? ~ should have done something? 9 A. Yes, I believe so. 9 A. When he saw him the next morning. 1U Q. You can rule out a laceration or a stretch? 1 ~.7 Q. Okay. So you don't criticize Dr. Holt for not 11 A. Correct. 11 seeing the patient on the 8th after he left the PACU? 12 Q. But if it was a stretch, it would have to be a 12 MS. LTTNCEFORD: Objection, form. 13 significant stretch, correct? 13 A. I mean -- 14 A. Yes. 19 Q. (By Mr. Assaad) Let me ask you this 15 Q. Can you rule out whether or not the injury was 15 question. 1~ caused by compression as a result of hematoma? 1: A. IfI -- if it was m e and I had a significant 17 MS. LUNCEFORD: Objection,form. 17 bleed that I wasn't expecting,. I would be checking on 1~ A. No,I don't think you can. 18 that patient in the PACU a couple of times, because I 1 ~~ Q. (By Mr. Assaad) Can you rule out whether or 15 would be womed about some injury that I missed. 2~ not the injury was caused by ischemia? 20 Q. Okay. But do you believe it was a deviation 1 A. I believe so. ~1 of the standard of care --not what you would do, 22 Q. Can you rule it out within a -- ifyou had a L~ because you might be the best doctor in the world. And 3 differential diagnosis ofischemia, could you rule that ~~ talking about the standard of care, that's the 29 out? L4 requirement. You low,that's the standard we're 25 A. Probably, y es, for the reason I stated 25 looking at -- for Dr. Holt not to see the patient on Pages 1.:~ Page 141 1 earlier. 1 January S, 2009, after he left the PACU? 2 Q. Do you know who Dr. Edwards is? 2 A. I mean,there is --there is no evidence that 3 A. Yes. 3 he saw him in the PACU. ~ Q. Outside of the deposition? 4 Q. We'll get to that later. But on the floor. 5 A. No. 5 Is there any -- do you -- are you going to offer the 5 Q. Okay. I'm almost done. I just wanted to make ~ opinion that Dr. Holt deviated from the standard of care 7 sure I understand all your opinions before I leave 7 for not seeing Mr. Houston on the floor an January 8, ~ today. 3 2012? A. Sure. ~+ A. On the floor, no. 1f Q. One of your opinions that we covered is 10 Q. Okay. Are you going to offer the opinion that 11 Dr. Holt discharged this patient from the hospital and 11 Dr. Holt deviated from the standard of care for not 12 that was a deviation of standard of care? 12 seeing Mr. Houston in the PACU? 1~ A. For a doctor, yes. To do that, -- 13 A. I would say yes. I would say most surgeons, 14 Q. Okay. 19 if they have an extraordinary amount of bleeding during 15 A. -- to discharge somebody with abnormal, 15 the case, that they usually would go check on that 1F after -- abnormal findings, significant abnormal 15 patient in the PACU and make sure that there is not more 17 findings with no functioning in the left upper 17 bleeding going on, there is not a major injury that 1s extremity, to write discharge orders, yes. Yes. 1~ needed to be addressed that they m issed in the O.R. 1G Most doctors would not do that. 19 Q. Well, Dr. Lam was an anesthesiologist, 2G Q. And you offered the opinion that he failed 20 correct? 1 to -- I'm not trying to put words in your mouth, but he L1 A. Correct. L2 failed to follow up on the bleed that happened during L2 Q. And he would have been aware of the bleeding? 23 the surgery? Z3 A. In the operating room, yes. 4 A. What I said was that he should have had a high Z~ Q. Yes. So you're saying that Dr. Holt cannot 25 degree of suspicion that there -- that a significant 25 rely on Dr. Lam who is aware of what occurred in the
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Pages 142 Page 144 1 operating room regarding the patient? 1 A. Yes. z A. No. ~ Q. In the PACU,those nurses should have told "~ Q. How long was -- do you know whether or not "i Dr. Holt? 4 Dr. Holt was available to see the patient in the PACU? 4 MS. LUNCEFORD: Objection, form. ~ A. Na. 5 q. Yes,they should tell Dr. Holt, as well as Q. Is it possible he could have been in surgery ~ Dr. Lam. 7 the entire time? 7 Q. (By Mr. Assaad) Was that done in this case? A. Sure, that's a possibility. ~? MS. LU~CEFORD: Objection, form. G Q. If he was in surgery the entire time and he A. Doctor -- as far as I can tell, the nurses 1u was -- and Mr. Houston was released by the 1G contacted Dr. Lam. But usually the anesthesiologists 11 anesthesiologist to go to the floor, would you agree 11 have communication with -- I'm sure the nurse was 12 with me that Dr. Holt did not deviate from the standard 17 thinking, I'm telling the anesthesiologist and he's 13 of care for not seeing Mr. Houston in the PACU? 13 going to tell Dr. Holt back in the operating room, who's 14 MS.LLJNCEFORD: Objection,form. 14 operating, what's going on. None of that's documented, 15 A. Okay. Let me try to get this straight because 15 but that's what I think would happen. 15 it's getting confusing. You're saying that Dr. Lam knew 1n Q. (By Mr. Assaad) That's an assumption you're 17 all the issues that were going on in the PACU? 17 making? 1~ Q. (By Mr. Assaad) No,no. Letme rephrase the 1p A. Yes. But that's what happens in hospitals 1'~ question. The question is: If Dr. Holt was in surgery 1 every day. 2D the entire tim e that doctor -- or that Mr. Houston was ~0 Q. And you agree v~~ith m e that a lot of these 21 in the PACU -- ~1 things happen in hospitals every day? zz A. Uh-huh. 22 MS. LtTNCEFORD: Objection,form. z? Q. -- and didn't have an opportunity to leave the 2 A. Yes, m istakes happen in hospitals. 24 operating room to see Mr. Houston prior to him being 24 Q. (By Mr. Assaad) Okay. So would you agree 25 discharged to the floor, would you still fault Dr. Holt 25 with m e that m ore m istakes are m ade by hospital staff P~g~ 143 Page 145 1 for not seeing Mr. Houston in the PACU? 1 such as nurses and techs than doctors? z MS. LUNCEFORD: Objection,form. 2 MS.LTJNCEFORD: Objection, form. 3 A. If you have a patient that you"re concerned 3 A. I don't know the exact numbers of who makes 4 about because there has been a major bleed during the 9 more mistakes, whether doctors or nurses. We're all 5 operation and they're in the PACU after your operation, 5 humans. IfI had to guess, I bet it's -- it's pretty 5 I --most doctors, if they can't come to the bedside at ~ even. 7 least to look at the patient, would at least call back 7 Q. (By Mr. Assaad) Going back to sum up, are you there to see how their patient is doing and talk to the ~ going to offer the opinion within a reasonable medical nurse, "Is everything okay"? y probability that the iatrogenic injury that you allege 1 c7 Q. You say most doctors would have seen a patient 1 ~i occurred during the operation was a deviation of 11 such as Mr. Houston in the PACU? 11 standard of care by Dr. Holt? 17 A. If they can, yes. 12 MS.LLTNCEFORD: Objection, form. 1 ~j Q. Okay. If they can? 13 A. I'm not an orthopedic surgeon so, he did tell 14 A. If they can, yes. 14 the patient that he could have nerve injuries and artery 15 Q. Do most doctors not rely on the PACU nurses 15 injuries in his consent. So those were possibilities. 1 °~ and staff to notify them if there is an issue? 1 So I don't think it's a deviation of standard of care 17 A. But those are nurses. I mean,they can't make 17 for an orthopedic surgeon to damage the axillary artery 1S diagnoses. So the nurse in the PACU was informing 1~ during that procedure. But I'm not an orthopedic 1~ Dr. Lam of all of the patient's status which was not 1~ surgeon. You would have to ask another orthopedic 20 normal. So she was telling a doctor. But it was 2 ~.~ surgeon. 1 Dr. Holt"s patient and I think he would want to know 21 Q. That's fine. I'm just trying to get whether 22 what's going on, tOO. LG or not -- I don't want to be surprised at trial. I'm 2~ Q. You think the doctor should have told Dr. Holt 23 trying to get all your opinions. L4 since it's his patient -- I mean, do you think the 24 So my understanding is with respect to 5 nurses should have told Dr. Holt since it's his patient? 25 the surgery itself and iatrogenic injuries to the
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1 nerves, you're not going to offer the opinion that 1 Q. Well, do you believe that that area should 2 Dr. Holt deviated from the standard of care; is that 2 have been explored for a new e injury, for a laceration correct? or transection on January 12th? 4 A. That is correct. 4 A. I think they were trying to save his arm as 5 Q. Okay. Doctor, assume that Mr. Houston's 5 best they could. That -- I mean, nerve injuries only E current condition is baseline. It is what it is in the work if you repair them immediately. The longer you 7 left extremity. Okay? 7 wait, much less likely to respond to that repair. Now,for this question, if the a~llary So I think they were worried about him ~~ artery was repaired intraoperatively by a vascular 9 losing his arm. It was necrotic. And nerve injuries 1 C~ surgeon, can you state within a reasonable medical 1 ~~ that need repair is something they could do later. They 11 probability the improvement in a percentage that would 11 were just trying to save his arm. And that's 12 have occurred in Mr. Houston's condition presently? 12 appropriate. I m ean, what they did on the 12th I 1'i MS. LUNCEFORD: Objection, form. 13 completely agree with. 14 A. No. 19 Q. We kind of went off on a tangent, started 15 Q. (By Mr. Assaad) Did you understand my 15 talking about the nerve injury. $ut if blood flow was 1~ question? 1 restored on 7anuary 8th, 2009 intraoperatively by 17 A. I think I did. But, no, you can't give a 17 vascular consult, they came and did what was done on 1a percentage. 1~ January 12th, would that have any effect on the damage 1° Q. Okay. Can you state within a reasonable 1 to the brachial plexus nerves? 20 degree of medical probability that there would have been 2~ A. I don't believe so. 21 any improvement in his condition if a vascular surgeon 21 Q. So, to simplify, the repair of the axillary 22 was consulted and repaired the artery during the 22 artery would have only benefited or reduced the damage ~? surgery? 2 to the skin and the muscles? 24 A. Yes. A hundred percent, there would be some 24 A. And the nerves peripherally. 2~ improvement. L5 Q. Yeah. Page 147 Page 149 1 Q. But you just can't give us an amount? 1 A. I stated that earlier, yeah. 2 A. Right. Right. 1 Q. Was there any evidence of peripheral nerve :~ Q. Okay. Well, if I asked you, would it be like 3 damage in the EMG report? 4 a 50 percent improvement or you wouldn't know even 50 ~ A. I believe so, yes. 5 percent? 5 Q. So you believe the peripheral nerves were A. With medical probability, nobody's going to be damaged by a lack of blood flow? 7 able to give you a percent. A. Yes, would be damaged with the lack of blood 8 Q. Well, would there be any improvement to the flaw. brachial plexus nerves if a surgery was performed? ~ Q. Not with the iatrogenic injury that occurred 1 ~.~ A. It -- I mean, we still don't know -- you know, 1 ~~ in the operation? 11 if one of the nerves were transected, if one of the 11 A. Yes, of course. I mean, the nerves that were 12 nerves had been cut with the axillary artery injury, you 12 cut at the or damaged at the time ofthe surgery were 13 could repair it at the time that you repair the axillary 13 getting damaged by this -- 14 artery. 14 Q. I admit that was a bad question. The injury 1~ But nerve repairs are very tricky. 15 to the nerves peripherally was not an iatrogenic injury 1F I mean, most nerve repairs don't work. But if there was 1 to those specific nerves? 17 something that was transected, then they could have 17 MS. LUNCEFORD: Objection, form. 1~ hooked the nerves back together and they might have 1 A. That weren't injured at the time in the O.R.? 1n grown back. 15 Q. (By Mr. Assaad} That weren"t injured at the 2~ Q. You're not going to offer an opinion, Doctor, 20 time in the O.R.? 21 you're not saying that Dr. Holt should have contacted a 21 A. Correct. 22 neurosurgeon or get a consult from a neurosurgeon at the 22 Q. They were injured as a result of a lack of 2? time of the surgery? 23 blood flow to that area? 24 A. No. I mean, there was no way to know what 2~ A. Correct. ?~ kind of nerve injury until you explore the area, so... 25 Q. So, again, to summarize, the injury is a
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_Original Image of this Document (PDF)
2002 WL 33962000 (Tex.Dist.) (Trial Order) Motions, Pleadings and Filings
District Court of Texas, 193rd Judicial District. Dallas County Athena HOGUE, Individually and as Executrix of the Estate of Robert Hogue, Jr., Deceased, Christopher Hogue, and Robert Hogue, III, Plaintiffs, v. COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC., Defendant. No. DV-99-01417-L. July 24, 2002.
Order on Post Verdict Motions
David Evans, District Judge.
ON FEBRUARY 2ND AND 4TH, 2002, this Court heard the parties' motions pertaining to the jury's verdict received on or about November 7, 2001. The Court considered the moving and responsive papers, post- hearing briefing, the argument of counsel and waited for medical malpractice opinions issued by the Supreme Court after the hearing and then finished an unrelated four week trial. In making these rulings, in many instances the Court limits its rulings to this trial court's appropriate function of applying existing law while leaving for the appellate courts the role of resolving conflicts between appellate opinions or reconsidering the rationale of appellate opinions or considering changes in policy or jurisprudence.
1. Constitutionality of Exemplary Damage Caps: The Texas Supreme Court characterized the °language to the effect that the legislature is without power to abrogate a claimant's wrongful death punitive damages recovery by statute" in Fort Worth Elevators Co. v. Russel% 123 Tex. 128, 70 S.W.3d 397, 408 (Tex. 1934) and Morton Salt Co. V. We//s, 123 Tex. 151, 70 S.W.2 409, 410 Tex. 1934)"is dicta, a mere expression of opinion on a point or issue not necessarily involved in the cases which does not create binding precedent under stare decisis." Travelers Indem. Co, v. Fuller, 892 S.W.2d 848, 852 n.3 (Tex. 1995). Until the principles of Texas constitutional law on which Plaintiffs rely are clearly established, this trial Court should not nullify the work of the Legislature by declaring a statute it passed to be unconstitutional. The Court, therefore, overrules Plaintiffs' argument and rules that the exemplary damages limits in TCPRC § 41.008(b) do not violate the Texas Constitution for these reasons and all those asserted by Defendant.
2. Exemplary Damages: caps 'per plaintiff'or 'per defendant'?
a. § 41.001(1) "Claimant":
i. °Wrongful death and survival recoveries are independent of one another, and the availability of one should in no way affect the other." General Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 924 (Tex. 1993. Thus reasoning, the Texas Supreme Court held that ~~claimant" in TCPRC § 41.001(1) did not combine the wrongful death claimant and the survival claimant. Defendants have cited no authority holding that survival claimants should-be combined and treated as one ~~claimant" for the purposes of TCPRC ~ 41.001(1).
ii. If ~~related to" in the definition of ~~claimant" in TCPRC § 41.001(1) combined survival claimants, Defendant's counsel could not explain why all the plaintiffs in a mass tort case, such as a bus or plane crash, would not similarly be treated as one claimant because all of their claims and all of their evidence,
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including their claims for punitive damages, ~~related to injury to another person, damage to the property of another person, death of another person ...." TCPRC § 41.001 (1).
b. § 41.008 'per defendant':
i. The Court of Appeals in Semino/e Pipe/ine Co, v. Broad Leaf Partners, Inc., 979 S.W.2d 730, 751-52 (Tex. App. - Houston [14th Dist.] 1998, no pet.) held:
The cap [TCPRC § 41.008(b)] provides that °exemplary damage awarded against a defendant may not exceed four times the amount of actual damages." [Footnote citation to then TCPRC § 41.007, now codified at § 41.008(b).] Like the civil liability cap found in the Medical Liability and Insurance Improvement Act, "the damages cap amounts should be calculated on a per defendant' basis because the [the statute] clearly applies to the recovery against the individual[*752] defendant, not the award to the individual plaintiff." Rose v. Doctors Hosp., 801 S.W.2d 841, 847 (Tex. 1990).
979 S.W.2d at 751-52.
ii. The Supreme Court in Rose v. Doctors Hosp., 801 S.W.2d 841, 847 (Tex. 1990) and in Baptist Hosp. Of Southeast Texas, Inc, v. Baber, 714 S.W.2d 310 (Tex. 1986)clearly held that Tex. Rev. Civ. Stat. Ann. art. 45901,§ 11.02(x) applies on a 'per defendant' basis. So, although Plaintiffs' and Defendant's counsel disagree on how the Seminole Pipeline Court applied its holding and the significance of that application, the Court's statement that it interpreted ~ 41.008(b) to mean per defendant' in the same way and for the same reason that the Rose Court meant per defendant' seems conclusive on the matter.
iii. Although the Dallas Court of Appeals is not bound by the Seminole Pipeline Court's opinion, this Trial Court should and will follow the published precedents in the State of Texas unless there is a conflict between them or some change in the law after the decision not accounted for in the opinion. Such is not the case with the Seminole Pipeline decision.
c. Accordingly, this Court holds that, substituting the parties' names into TCPRC § 41.008 (b), the exemplary damages awarded against COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. in favor of ATHENA HOGUE, Individually and as Executrix of the ESTATE OF ROBERT HOGUE,]R., Deceased, CHRISTOPHER HOGUE, and ROBERT HOGUE, III, ~~may not exceed an amount equal to the greater of: (1) (A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000." d. This holding is based on the reasons stated above and all those urged by Defendant except the Court adopts all those urged by Plaintiff regarding °claimant".
3. Stowers Doctrine & §§ 11.02(x), 11.02 (c): Although very difficult to comprehend, the Stowers doctrine language of art. 45901 § 11.02(c) does not appear to function as an exception to the statutory limit of a med-mal plaintiffs judgment discussed in art. 45901 § 11.02 (a~, but to safeguard the insured physician or health care provider they asserted a Stowers claim against their insurer. Accordingly, the Court denies the Plaintiffs' motions regarding art. 45901 § 11.02 c) excepting their verdict from the statutory limits on their judgment set forth in art. 45901 § 11.02 a)for all the reasons asserted by Defendant.
4. Settlement Credits in Relation to § 11.02(x) Caps: In Edinbur~p. Auth. v. Trevino, 941 S.W.2d 76,, 82 (Tex. 1997, the Supreme Court of Texas held that, ~~A settlement with one tortfeasor should thus be offset before the verdict against the governmental unit is reduced to the statutory maximum." 941 S.W.2d at 82 (emphasis in original). Finding no holding to the contrary regarding the 45901, § 11.02 a)statutory cap and both being the subject of statutes, the Court holds that the settlement credits applicable in this case should be applied before the statutory caps are applied to the damages. The Court so holds for all the reasons stated above and all- those-urged by Plaintiffs.
5. Sufficiency of Loss of Inheritance Evidence: The sufficiency of the inheritance evidence before this Court
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seems less than that in Thornhi// v. Ronnie's 1-45 Truck Stop, Inc., 944 S.W.2d 780, 792-93 (Tex. App_- Beaumont 1997, writ dism'd by a req em't) and only equal to or less than the evidence in C&H Nationwide, Inc, v. Thompson, 903 S.W.2d 315, 322-23 (Tex. 1994). This Court is, therefore, compelled to grant the judgment notwithstanding the verdict that Mrs. Hogue take nothing by reason of her claim for loss of inheritance for all the reasons urged by Defendant.
6. Prejudgment Interest in Relation to § 11.02(a) Caps: The Supreme Court decided that pre-judgment interest is included in the § 11.02 (a~ caps. Co/umbia Hosp. Corp. v. Moore, slip op. 01-0293, 2002 Tex. LEXIS 104, 45 Tex. Sup. J. 957 (2002).' This Court, therefore, rules that Plaintiffs' prejudgment interest should first be calculated and then the § 11.02 (a)caps should be applied.
THE COURT ORDERS AND DECREES that Plaintiffs' counsel draw up a judgment in conformity with these rulings. In the event counsel for all parties cannot agree to the form of the judgment, or there is a matter not reached by this Court's decision, or there is some other disagreement, Plaintiffs' counsel should promptly request a hearing.
SO ORDERED this Wednesday, July 24, 2002 at 11:00 am at the courthouse in Dallas, Texas.
~t~
David Evans, District Judge
193rd Judicial District Court
Athena HOGUE, Individually and as Executrix of the Estate of Robert Hogue, Jr., Deceased, Christopher Hogue, and Robert Hogue, III, Plaintiffs, v. COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC., Defendant. 2002 WL 33962000 (Tex.Dist.) (Trial Order)
Motions, Pleadings and Filings (Back to top)
• 2002 WL 32919508 (Trial Motion, Memorandum and Affidavit) Motion for New Trial or, in the Alternative, Motion for Remittitur of Defendant Columbia Medical Center of Las Colinas, Inc. d/b/a Las Colinas Medical Center and Motion to Modify, Correct, or Reform Judgment (Sep. 27, 2002) Original Image of this Document (PDF) • 2002 WL 32919509 (Trial Motion, Memorandum and Affidavit) Defendant Columbia Medical Center of Las Colinas, Inc. d/b/a Las Colinas Medical Center's Motion for Judgment Notwithstanding the Verdict (Sep. 27, 2002) ~~ Original Image of this Document (PDF) • 2002 WL 32919507 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Memorandum of Law in Support of Motion for Entry of Judgment on the Jury Verdict (Feb. 14, 2002) Original Image of this Document PDF) • 2002 WL 32919510 (Trial Motion, Memorandum and Affidavit) Defendant Columbia Medical Center of Las Colinas, Inc. d/b/a Las Colinas Medical Center's Response and Objections to Plaintiffs' Motion for Entry on the Jury Verdict (Feb. 1, 2002).~ Original Image of this Document PDF) • 2001 WL 34831166 (Trial Pleading) Plaintiffs' Tenth Amended Original Petition (Dec. 14, 2001) Original Image of this Document (PDF • 2001 WL 34831641 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Motion for Non-Suit Regarding Defendants ]ay C. Story, M.D. and Coppell Family Physicians, P.A. without Prejudice (Oct. 23, 2001) riginal Image of this Document (PDF~ • 2001 WL 34831640 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Motion to Dismiss as to Gregory Blomquist, M.D. and Questcare Medical Services, P.A. (Oct. 22, 2001). Original Image of this Document PDF)
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Cite This Page — Counsel Stack
Christus Health Gulf Coast D/B/A Christus St John Hospital v. Jay Houston, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christus-health-gulf-coast-dba-christus-st-john-hospital-v-jay-houston-texapp-2015.