Christus St. Mary Hospital v. O'Banion

227 S.W.3d 868, 2007 Tex. App. LEXIS 4866, 2007 WL 1793780

• Court: Court of Appeals of Texas
• Decided: June 21, 2007
• Docket: 09-06-141 CV
• Status: Published

Opinion

OPINION

STEVE McKEITHEN, Chief Justice.

Appellee Anne Bucklin O’Banion, acting individually and as representative of the estate of Richard Wynne O’Banion, Sr., filed suit against appellant Christus St. Mary Hospital (“Christus”). She alleged that Christus’s medical negligence caused the death of her husband. The decedent’s children, appellees Richard Wynne O’Ban-ion, Jr., James Alden O’Banion, and Ray Edward O’Banion, intervened in the lawsuit as plaintiffs. A jury found that Chris-tus’s negligence proximately caused the death and awarded damages to appellees. Christus filed this appeal, in which it raises three issues for our consideration. We reverse and render judgment that appel-lees take nothing from Christus.

The Evidence

Richard Wynne O’Banion, Sr. (“O’Ban-ion”) was admitted to Christus St. Mary Hospital after suffering a heart attack. O’Banion had a history of coronary artery disease, diabetes, renal insufficiency, and heart surgery. During treatment, O’Ban-ion’s condition began to improve. However, during his stay at Christus, O’Banion fell while a nursing assistant was helping him from the bathroom. A CT scan revealed that as a result of the fall, O’Banion suffered a complex fracture of the right zygomatic maxillary area and several small intracranial hematomas. The CT scan also showed “eneephalomalacia of the right parietal lobe from previous cerebrovascular accidents.” After his discharge from St. Mary Hospital, O’Banion went to Magnolia Manor Nursing Home, where he died a few days later.

At trial, appellees offered testimony from four physicians: Drs. Udonta, Croft, Smith, and Meissner. Dr. Emen Dan Udonta, O’Banion’s treating neurologist at Christus, testified that he reviewed O’Ban-ion’s CT scan, which revealed “multiple areas of abnormality which were consistent with intracerebral hemorrhage, and ... an area of maxillary fracture....” According to Dr. Udonta, the CT also revealed areas of eneephalomalacia from previous strokes. Dr. Udonta explained that the CT scan also showed “multiple areas of tiny hemor rhagic densities” that resulted from trauma to the brain. Dr. Udonta testified that after the fall, O’Banion’s prognosis was “very guarded,” meaning “that the mortality rate would be high.” Dr. Udonta opined that the mortality rate was seventy-five to eighty percent. Therefore, Dr. Udonta ordered only comfort care for O’Banion. Dr. Udonta testified that more likely than not, the head injury “contributed to [O’Banion’s] death possibly.” Dr. Udonta further explained, “here we have someone who has enough medical problems to begin with; and then adding additional brain injuries would make a difference.” On cross-examination, Dr. Udonta testified, “This is a chap who had ... coronary artery disease, diabetes mellitus, and he ... was just admitted for a cardiac cath urgently, meaning that he had severe coronary artery disease. That combination kind of ... gives me a high morbidity-slash-mortality.”

Dr. Steven Michael Croft, a neurologist retained by the plaintiff to address the issue of causation, testified that O’Banion fell “with enough force to cause a fracture of his right cheekbone or his zygomatic arch and to cause contusions or bruising to the brain, hemorrhages in the brain[.]” According to Dr. Croft, the fall also caused O’Banion to suffer from a coup-contrecoup, meaning that O’Banion’s brain “struck one side of the skull, bounced back, and caused damage to the opposite hemisphere.” Dr. Croft opined that O’Banion was improving before the fall because he had been moved from the intensive care unit to the floor, and he had been removed from an intra-aortic balloon pump.

Dr. Croft testified that after the fall, O’Banion “was noted to be obtunded; that is, his level of consciousness was decreased; and he was transferred to the intensive care unit.” According to Dr. Croft, O’Banion’s bedridden condition after the fall subjected him to developing other complications, such as pneumonia, infections, blood clots, or decubitus ulcers. Dr. Croft testified, “it’s difficult to state exactly what the final cause of death was. I think that the intra[ ]cerebral hemorrhage, or the head injury, was the mechanism that eventually led up to his death.” According to Dr. Croft, but for O’Banion falling and hitting his head, he would not have died on December 22, 2002.

Dr. Croft testified that there was no reason O’Banion “wouldn’t have continued to improve, at least in the immediate future, if it wasn’t for that fall.” Dr. Croft opined that the head injury “led to a number of medical complications which eventually caused [O’Banion’s] death[.]” Dr. Croft further explained, “it’s difficult to tell exactly what the exact final mechanism was, whether it could have been sepsis, which is infection in the blood, or aspiration pneumonia, or urinary tract infection, or blood clots. It’s difficult to tell what the final actual cause of death was because there weren’t really interventions, quite appropriately, done to determine that.” According to Dr. Croft, O’Banion’s intra-cerebral hemorrhage “may not have caused his death immediately ...; but over time, given the other complications that are apt to develop, it ... very well could have led to death.” Dr. Croft testified that the fall led to “medical deterioration, which led to [O’Banion’s] death.” Dr. Croft testified that O’Banion was being treated with a blood thinner (Coumadin) before the fall, but the fall necessitated discontinuation of the Coumadin, thereby increasing O’Banion’s risk of blood clots, heart attack, stroke, and atrial fibrillation. Dr. Croft also explained that putting O’Banion on a ventilator after the fall increased his risk of developing pneumonia and other respiratory problems.

On cross-examination, Dr. Croft testified that he would defer to a cardiologist regarding the significance of O’Banion’s congestive heart failure. Dr. Croft also explained that O’Banion’s treating cardiologist had predicted that O’Banion’s life expectancy would be shortened, and Dr. Croft testified that the bleeding in O’Ban-ion’s brain “was not the direct cause of his death.” Dr. Croft opined that O’Banion died from a secondary complication of the brain hemorrhage; however, he could not state what complication directly caused O’Banion’s death. Dr. Croft testified that he could not rule out heart failure, myocardial infarction, or arrhythmia as the cause of O’Banion’s death. Dr. Croft testified he did not believe an autopsy was necessary to determine the cause of O’Banion’s death, but he admitted that an autopsy could have ruled out other potential causes.

Dr. Michael Smith, O’Banion’s treating cardiologist, testified that when O’Banion was admitted to Christus with an acute myocardial infarction and severe pulmonary edema, he performed an emergency cardiac catheterization on O’Banion. Dr. Smith treated O’Banion with an intraortic balloon pump, blood pressure medication, and a blood thinner. Dr. Smith explained that O’Banion suffered from “significantly reduced function of the left ventricle[]” because portions of the left ventricle had died as a result of the heart attack. O’Banion also suffered from mitral valve regurgitation. Dr. Smith testified, “it would have surprised me if he would have left the hospital alive based on his heart situation.” Dr. Smith also explained that although O’Banion’s condition had improved, his heart did not really improve.

According to Dr. Smith, O’Banion’s dead heart muscle could not be treated with cardiac rehabilitation, and he did not expect O’Banion’s heart function to significantly improve. Dr. Smith explained, “I think that [O’Banion] was at — a setup candidate for recurrent admissions to the hospital with heart failure if he survived; and he was certainly at risk for the development of ... sudden cardiac death, which is ventricular arrhythmias and dying suddenly.” When asked whether being bedridden adversely affected O’Banion’s cardiac recovery, Dr. Smith testified, “Being bed-bound would set him up [for] other problems, such as blood clots and things of that nature, that aren’t specifically directed to the heart per se, but it would have certainly changed his clinical course.” Dr. Smith also testified that stopping the blood thinner put O’Banion at risk of developing blood clots. According to Dr. Smith, head trauma does not cause congestive heart failure. Dr. Smith testified that being placed on a ventilator could contribute to the development of pneumonia. When asked whether the fall contributed to O’Banion’s death, Dr. Smith explained, “If I were signing the death certificate, it would have to be listed ... at least in that [sic] contributing factor.” Dr. Smith testified that the fall contributed to O’Banion’s condition, but “[w]hether or not it led directly to the demise, I don’t know.” Dr. Smith testified that heart failure could have been the cause of O’Banion’s death.

Cardiologist Dr. Frank Meissner testified that he was retained “to look at this case from the standpoint of the patient’s cardiovascular prognosis of death prior to his fall and try to give some estimate of what I thought the likelihood would be that he would survive to ... to one year, since he survived to discharge.” According to Dr. Meissner, O’Banion’s risk of dying within one year was thirty to forty percent. Dr. Meissner characterized O’Ban-ion’s heart attack as “a moderate sized infarct.” Dr. Meissner explained that O’Banion’s left ventricular pressure was elevated, and he had mitral regurgitation and elevated systolic pressures. According to Dr. Meissner, O’Banion’s heart muscle function had begun to improve after the insertion of an intra-aortic balloon pump, O’Banion was removed from the ventilator, and his congestive heart failure was responding to treatment. However, Dr. Meissner also testified that O’Banion suffered from atrial fibrillation sometime before the fall. Dr. Meissner further testified, “I think it’s uncontroversial to say that he was showing clinical improvement over the period of time until the fall.” Dr. Meissner also noted that Dr. Smith had prescribed physical therapy for O’Banion, and that fact “says something fairly significant about Dr. Smith’s assessment of the patient’s clinical trajectory and how he thinks he’s doing because you don’t prescribe physical therapy for people that are not improving.”

According to Dr. Meissner, as a result of the fall, O’Banion was no longer a candidate for an implantable cardio defibrillator (“ICD”). Dr. Meissner explained that ICDs “make a big difference in these kind of patients in terms of chance of arrhythmic death.” Dr. Meissner testified that an ICD “would have influenced [O’Banion’s] mortality somewhat; and because of the fall, he no longer was a candidate because he didn’t have the neurologic function to justify ... that intervention.” Dr. Meiss-ner also explained that O’Banion’s bedridden status after the fall was “just not a good state to be in with a bad ... heart.” According to Dr. Meissner, because O’Ban-ion survived the heart attack and was able to meet his treating doctor, he had a “better than even chance of being alive at a year.”

On cross-examination, Dr. Meissner testified that he was not asked to provide an opinion on the actual cause of O’Banion’s death, and he did not review the necessary records to make that determination. Dr. Meissner testified that he was at least fifty-one percent certain that O’Banion’s heart condition declined due to his immobility after the fall, and he admitted that since his deposition, he had changed his opinion regarding that issue based on new data presented to him.

Issues on Appeal

In issue one, Christus asserts the evidence was legally and factually insufficient to support the jury’s verdict that Chris-tus’s negligence proximately caused O’Banion’s death. In issues two and three, Christus argues the trial court abused its discretion in denying its motions to exclude the causation testimony offered by Drs. Croft and Udonta. Because Christus’s legal sufficiency argument, if sustained, would result in rendition of a judgment that appellees take nothing, we address this portion of issue one first. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981); Tex. R.App. P. 48.3.

STANDARD OF REVIEW

When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it does not have the burden of proof, it must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing a no evidence point, we consider only the evidence and inferences that tend to support the finding and disregard all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Conti Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). We must credit favorable evidence if reasonable jurors could, and we must disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. Browning-Ferns, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993). When the evidence of a vital fact is “so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

Pertinent Law

In a medical negligence case, the plaintiff must prove by a preponderance of the evidence that, within a reasonable medical probability, the allegedly negligent act or omission proximately caused the harm alleged. Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399-400 (Tex.1993); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995). The two components of proximate cause are cause-in-fact and foreseeability. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003); Arlington Mem’l Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922 (Tex.App.-Fort Worth 1999, pet. denied). In medical malpractice cases, “[a]s is true in other types of negligence cases, the ultimate standard of proof on the causation issue is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.” Kramer, 858 S.W.2d at 400; see also Park Place Hosp., 909 S.W.2d at 511.

Likewise, in actions filed under the Wrongful Death Statute, the plaintiff must prove that the alleged negligence proximately caused the death. See Tex. Civ. PRAC. & Rem.Code AnN. § 71.002 (Vernon 1997); Kramer, 858 S.W.2d at 404; Sisters of St. Joseph of Texas, Inc. v. Cheek, 61 S.W.3d 32, 37 (Tex.App.-Amarillo 2001, pet. denied). “[T]he plaintiff must establish a causal connection beyond the point of conjecture; proof of mere possibilities will not support the submission of an issue to the jury.” Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). Furthermore, unless the doctrine of res ipsa loquitur applies, a plaintiff generally must provide expert testimony to prove that the alleged medical negligence proximately caused the injury. 1 Linan v. Rosales, 155 S.W.3d 298, 302-03 (Tex.App.-El Paso 2004, pet. denied); see also Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982) (“Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layman.”). In addition, Texas law does not recognize the loss of a chance of survival or cure as evidence of proximate cause in medical malpractice cases. Kramer, 858 S.W.2d at 404-07; Hodgkins v. Bryan, 99 S.W.3d 669, 675 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Bradley v. Rogers, 879 S.W.2d 947, 955-57 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Furthermore, a plaintiff must rule out other plausible causes of the injury. Merrell Dow. Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 559 (Tex.1995)).

APPLICATION OF THE LAW TO THE FACTS

Dr. Udonta testified that O’Ban-ion’s “mortality rate” after the fall was high, and he opined that O’Banion’s fall and resultant head injury “contributed to his death possibly.” Dr. Udonta also testi- fled that because of O’Banion’s pre-exist-ing medical problems, O’Banion’s brain injury would have made a difference. Dr. Udonta merely opined that the fall contributed to O’Banion’s death and decreased O’Banion’s likelihood of surviving. Such testimony does not constitute legally sufficient evidence of proximate cause. Cheek, 61 S.W.3d at 36-37 (finding a physician’s testimony that the alleged negligence “caused or contributed to” the decedent’s death is legally insufficient); Kramer, 858 S.W.2d at 404-07 (Texas law does not recognize the loss of a chance of survival as evidence of proximate cause in medical malpractice cases.); see generally Bradley, 879 S.W.2d at 958 (“Testimony in the abstract about mortality rates is not evidence of proximate cause.... ”).

Dr. Croft testified that O’Banion was obtunded after the fall, and O’Banion’s bedridden condition subjected him to various secondary complications, including pneumonia, infections, blood clots, or decu-bitus ulcers. According to Dr. Croft, the head injury “led to a number of medical complications which eventually caused [O’Banion’s] death[J” Dr. Croft opined that intracerebral hemorrhage “was the mechanism that eventually led up to [O’Banion’s] death[,]” but he also testified, “it’s difficult to state exactly what the final cause of death was.” Dr. Croft testified that the hemorrhage did not directly cause O’Banion’s death; rather, the fall led to a “medical deterioration,” that other complications were likely to develop as a result, and that such complications “very well could have led to death.”

Although Dr. Croft testified that if O’Banion had not fallen, he would not have died on December 22, 2002, Dr. Croft testified that the bleeding in O’Banion’s brain “was not the direct cause of his death[,]” and he did not offer an opinion regarding what particular secondary complication led to O’Banion’s death. Dr. Croft admitted that he could not rule out heart failure, myocardial infarction, or arrhythmia as causes of O’Banion’s death. See Hamer, 953 S.W.2d at 720. Furthermore, although Dr. Croft noted that the fall necessitated discontinuation of O’Banion’s Coumadin, he did not state the cessation of the Coumadin therapy caused O’Banion’s death. Likewise, although Dr. Croft testified that putting O’Banion on a ventilator increased his risk of developing pneumonia and other respiratory problems, he did not testify that O’Banion developed such complications, or that such complications caused O’Banion’s death. Dr. Croft’s testimony that O’Banion’s fall caused an unidentified secondary complication, and that such a complication caused his subsequent death, is legally insufficient evidence of proximate cause. See Kramer, 858 S.W.2d at 400 (The alleged negligent act must be shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.); Duff, 751 S.W.2d at 176 (Proof of mere possibilities does not support submission of the issue of causation to the jury.).

Dr. Smith testified that he would have been surprised if O’Banion had “left the hospital alive based on his heart situation.” Dr. Smith also explained that O’Banion was at risk of sudden cardiac death. Dr. Smith opined that O’Banion’s bedridden status after the fall and the discontinuation of the Coumadin made O’Banion prone to other complications and would have changed O’Banion’s clinical course. Dr. Smith also testified that being placed on a ventilator made O’Banion susceptible to pneumonia. Dr. Smith testified he believed the fall contributed to O’Ban-ion’s condition, but he did not know whether the fall led directly to O’Banion’s death. Although Dr. Smith identified the cessation of the Coumadin and O’Banion’s place ment on a ventilator as increasing O’Ban-ion’s risk of complications, Dr. Smith did not identify what such complication, if any, caused O’Banion’s death. Dr. Smith testified that before the fall, O’Banion was at risk of death due to his heart condition, and he did not rule out cardiac events (independently of the fall) as the cause of O’Banion’s death. See Hamer, 953 S.W.2d at 720. For these reasons, Dr. Smith’s testimony does not provide legally sufficient evidence of proximate cause. See Kramer, 858 S.W.2d at 400; Duff, 751 S.W.2d at 176; Cheek, 61 S.W.3d at 36-37.

Dr. Meissner testified that O’Ban-ion had only a thirty to forty percent risk of dying within one year, and O’Banion was improving until the fall. Dr. Meissner testified that as a result of the fall, O’Ban-ion was no longer a candidate for an ICD; however, he did not testify that if an ICD had been implanted, O’Banion would not have died. Rather, Dr. Meissner testified that an ICD “would have influenced [O’Banion’s] mortality somewhat[.]” Dr. Meissner also testified that he was not asked to provide an opinion regarding the cause of O’Banion’s death, and he did not have the necessary records to make such a determination. Dr. Meissner testified he was at least fifty-one percent certain that O’Banion’s heart condition declined due to his immobility after the fall, but he did not testify that O’Banion’s heart condition caused his death, nor did he testify that O’Banion would not have died if he had not fallen. See Cheek, 61 S.W.3d at 35 (Plaintiffs must prove that the alleged negligence was a substantial factor in bringing about the harm, and without which negligence the harm would not have occurred.).

Because Dr. Meissner did not testify that the fall caused O’Banion’s death, his testimony does not provide legally sufficient evidence of proximate cause. See id.; see also Kramer, 858 S.W.2d at 404-07 (Texas law does not recognize the loss of a chance of survival as evidence of proximate cause in medical malpractice cases.); Bradley, 879 S.W.2d at 958 (Testimony in the abstract about mortality rates is not legally sufficient evidence of proximate cause.); Cheek, 61 S.W.3d at 36-37 (Testimony that alleged negligent act “caused or contributed to” death is legally insufficient.).

ConClusion

Having found that none of the expert testimony offered by appellees provided legally sufficient evidence of proximate cause, we sustain the legal sufficiency argument in Christus’s first issue, and we render judgment that appellees take nothing from Christus. Because of our disposition of Christus’s legal sufficiency argument, we need not address Christus’s factual sufficiency argument or issues two and three.

REVERSED AND RENDERED.

1 . In this proceeding, the parties do not contend that the doctrine of res ipsa loquitur applies.