Creech v. Columbia Medical Center of Las Colinas Subsidiary, L.P.

411 S.W.3d 1, 2013 WL 1245551, 2013 Tex. App. LEXIS 2087
CourtCourt of Appeals of Texas
DecidedFebruary 13, 2013
DocketNo. 05-10-01545-CV
StatusPublished
Cited by26 cases

This text of 411 S.W.3d 1 (Creech v. Columbia Medical Center of Las Colinas Subsidiary, L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creech v. Columbia Medical Center of Las Colinas Subsidiary, L.P., 411 S.W.3d 1, 2013 WL 1245551, 2013 Tex. App. LEXIS 2087 (Tex. Ct. App. 2013).

Opinion

OPINION

Opinion by Justice FITZGERALD.

This is a wrongful-death case involving alleged medical malpractice. The jury returned a verdict in favor of defendants, and the trial judge rendered a take-nothing judgment. Plaintiffs appeal, arguing that the jury’s verdict was against the [4]*4great weight and preponderance of the evidence and that the expert testimony regarding causation offered by defendants was of no probative value. We affirm.

I. BACKGROUND

A. Facts

The evidence adduced at trial supported the following facts. In October 2001, Donald Creech, Jr. (Creech) was 41 years old. On October 19, 2001, Creech was experiencing severe pain, apparently from a kidney stone. He had suffered from kidney stones in the past. He went to Las Colinas Medical Center (sometimes referred to herein as the hospital) for treatment. He was treated in the emergency room by Dr. Elizabeth Lacy, who observed that Creech was suffering from left flank pain and diagnosed him with a kidney stone. The stone was later confirmed by CT scan. After a medication called Toradol failed to relieve Creech’s pain, Dr. Lacy prescribed an opioid analgesic called Dilaudid, which is more potent than morphine. Under Dr. Lacy’s order, Creech could receive two to four milligrams of Dilaudid by IV every two hours as needed for pain. Creech was admitted to the hospital the evening of the 19th. At that time he came under the care of a urologist, Dr. Ali Shirvani. Dr. Shir-vani left the Dilaudid order in place for the duration of Creech’s stay.

During the night of October 19, Nurse Layne Wilson-Cox observed that Creech made a “snarfling snore” noise while he slept and believed that he might have sleep apnea. She had a respiratory therapist, Jack Carpenter, test Creech’s blood-oxygen levels, and those levels were low. They contacted Dr. Shirvani during the night, and he ordered that Creech be put on “02 protocol,” which meant that Creech was to be given additional oxygen through a nasal cannula or tube for the rest of his hospital stay, except when he was up and walking.

On October 20, Dr. Shirvani saw and evaluated Creech at around 8:00 a.m. Around midmorning, Dr. Shirvani talked to a respiratory therapist, Kyle Chandler, who recommended contacting a neurologist and sleep specialist named Dr. Rabia Khan to see if she wanted to do a sleep study on Creech. Chandler saw Dr. Khan later that day and told her about Creech, and she visited with Creech personally that evening. They discussed having him make an appointment for a sleep study with Dr. Khan’s office.

The night of October 20-21, Nurse Anto-nette Conner was the charge nurse, and Nurse Anna Mathew was the nurse specifically assigned to Creech’s care. Conner was a licensed registered nurse. Mathew was a licensed vocational nurse. Mathew gave Creech 2 milligrams of Dilaudid at 7:45 p.m. Creech reported severe pain again at 10:05 p.m., and at that time Mathew gave him 4 milligrams of Dilaudid. Mathew testified that she saw Creech again at midnight when she changed his IV bag, and he was fine at that time. Conner also testified that she checked on Creech at midnight and that he was snoring so loudly that she closed the door of a neighboring patient’s room. A different nurse, Betty Lloyd, testified that she saw Creech walking in the hall and asking for something to drink roughly between midnight and 12:30 a.m. At 1:30 a.m., Nurse Mathew found Creech unresponsive, and a Code was initiated. Emergency resuscita-tive measures were unavailing, and Creech was pronounced dead at 3:10 a.m.

An autopsy was performed on October 22 by Dr. Yuenan Shen, with the participation of Dr. David Dolinak. Dr. Dolinak was the deputy chief medical examiner for Dallas County. The autopsy report was admitted into evidence. It was signed by [5]*5both doctors and contained the following conclusion: “Based upon the history and the autopsy findings, it is our opinion that Donald Creech ... died as a result of hypertensive-type cardiac hypertrophy. Obesity and bronchopneumonia likely contributed to his death.” Deposition testimony by Dr. Dolinak was played for the jury in which he explained that, in his opinion, Creech suffered an arrhythmia that resulted in a heart attack. He also opined that Dilaudid was not related to Creech’s death in any way.

B. Procedural history

Creech’s surviving family members filed this wrongful-death lawsuit in 2002. At the time of trial in 2004, defendants were Dr. Shirvani, Dr. Khan, respiratory therapists Carpenter and Chandler, and the three appellees (the hospital, Conner, and Mathew). Each side called multiple expert witnesses at trial. One of the contested fact issues was the actual cause of Creech’s death. Plaintiffs’ theory was that Creech died from oxygen deprivation brought on by a combination of obstructive sleep apnea and the administration of an amount of Dilaudid that prevented Creech from waking up during an apneie episode. Defendants’ theory was that Creech died from a cardiac event that was not related to the administration of Dilaudid. Question 1 of the jury charge asked, “Did the negligence, if any, of those named below proximately cause the death of Donald Creech, Jr.?” The jury answered “No” as to every defendant.

Plaintiffs filed a motion for new trial, and the trial judge signed an order granting a new trial as to Nurse Mathew, Nurse Conner, and the hospital with respect to its vicarious liability for the nurses’ conduct. The judge denied the motion for new trial as to the doctors and respiratory therapists. The judge later signed a take-nothing judgment in favor of the doctors and respiratory therapists, and also in favor of appellee Las Colinas Medical Center with respect to all direct and vicarious claims based on the conduct of Carpenter and Chandler. The judge severed those claims out to make the judgment final.

Meanwhile, the hospital and the nurses sought mandamus relief with respect to the order granting plaintiffs a new trial. The supreme court granted some of the relief they sought, concluding that the trial judge had to specify his reasons for disregarding the jury’s verdict and granting a new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex.2009) (orig. proceeding). By this time, a new trial judge had taken the bench in the relevant court. He recused himself, and the case was transferred to a different trial court. The judge of that court denied plaintiffs’ motion for new trial and signed a take-nothing judgment in favor of the hospital and the nurses. Plaintiffs appealed.

II. Analysis

In their first issue on appeal, appellants argue that the trial judge erred by denying their motion for new trial because the jury’s findings in favor of appellees were against the great weight and preponderance of the evidence. In their second issue on appeal, and in further support of their first issue, appellants argue that all expert testimony by Dr. Dolinak and by appellees’ expert witnesses as to the cause of Creech’s death was speculative, conclu-sory, and without probative value. They argue both issues together.

A. Applicable law and standard of review

Appellants’ claims against appel-lees are health care liability claims sounding in negligence. The elements of such [6]

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Cite This Page — Counsel Stack

Bluebook (online)
411 S.W.3d 1, 2013 WL 1245551, 2013 Tex. App. LEXIS 2087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creech-v-columbia-medical-center-of-las-colinas-subsidiary-lp-texapp-2013.