Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-24-00028-CV
LAREDO TEXAS HOSPITAL COMPANY, L.P. d/b/a Laredo Medical Center, Appellant
v.
Zulema CABRERA, Individually and on Behalf of the Estate of David Cabrera, Deceased, Appellee
From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2020-CVB-000897-D2 Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Irene Rios, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
Delivered and Filed: December 11, 2024
AFFIRMED
Appellant Laredo Texas Hospital Company, L.P. d/b/a Laredo Medical Center (LMC)
appeals the trial court’s judgment in favor of appellee Zulema Cabrera. We affirm the judgment.
BACKGROUND
On May 31, 2019, Zulema’s husband, David Cabrera, underwent a tonsillectomy at LMC.
David’s surgeon, Dr. Erik Sloman-Moll, saw bleeding in the back of David’s throat during the
procedure, and he took several steps to address the bleeding. After he completed those steps, 04-24-00028-CV
Sloman-Moll saw a “flash” of blood that concerned him. He wanted to consult with LMC’s
interventional radiology department to examine—and, if necessary, repair—any injured blood
vessels in David’s throat, but the interventional radiologist had already left for the weekend.
Sloman-Moll testified that David was not bleeding at the conclusion of the surgery.
However, to guard against the possibility of further bleeding over the weekend, Sloman-Moll
packed David’s mouth and throat with gauze, kept him intubated, and transferred him to LMC’s
intensive care unit. He also obtained a CT angiogram of David’s neck and entered an order for an
interventional radiology consult. Sloman-Moll testified that he later reviewed the CT angiogram
with a radiologist and an interventional radiologist, but he also left the order for an interventional
radiologist consult open because “I want him to stay on [interventional radiology]’s list in case
this patient had a problem. . . . I want them available because I’m still worried about that patient.”
Sloman-Moll testified that he told the ICU nurses, “Don’t erase that order.”
David remained in the ICU from the evening of Friday, May 31 until Tuesday, June 4.
Zulema testified that she saw blood dripping from David’s face in the ICU. She also watched
nurses clean blood from his mouth and place gauze under him “like that they didn’t want the pillow
to get dirty.” When she asked about the bleeding, the nurses told her it was “something normal
from the operation.” Sloman-Moll, in contrast, testified there was no blood on the gauze he
removed from David’s mouth and throat, and LMC contends David’s medical records show
documentation of blood-tinged sputum, but not blood. 1 Sloman-Moll told the jury he did not see
any injured arteries in David’s throat when he removed the gauze packing, but “there was a
suspicion that bleeding could reoccur.” After Sloman-Moll removed the packing, he “called
1 Sloman-Moll testified that sputum is “secretions that occur, primarily, in the lung,” and he explained that intubation increases production of sputum and requires periodic suctioning of the intubated patient’s endotracheal tube.
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[interventional radiology] to let them proceed with their day,” but he did not cancel or otherwise
resolve the pending consult.
It is undisputed that David’s hemoglobin levels, which indicate the health of red blood
cells, dropped throughout his stay in the ICU. His pre-surgery hemoglobin level was 14.5, which
was normal. His hemoglobin level dropped to 12.8 immediately after his surgery on May 31, then
to 11.6 on Saturday, June 1. David’s hemoglobin level was not checked on Sunday, June 2. His
hemoglobin dropped to 8.8 on Monday, June 3, and then to 7.7 on Tuesday, June 4. Although
LMC’s internal policies defined a hemoglobin level under 8 as critical, David’s hemoglobin levels
were not checked again after June 4. At trial, Zulema’s medical expert, Dr. Aaron Wittenberg,
testified that David’s falling hemoglobin levels were a sign of untreated internal bleeding.
David was transferred from the ICU to LMC’s medical-surgical floor on June 4, five days
after his surgery. Sloman-Moll’s order for an interventional radiology consult was still in place.
The next day, June 5, David began complaining of severe pain in his throat, and an LMC nurse
administered intravenous morphine to treat this new pain. Sloman-Moll testified that he was still
caring for David on June 4 and June 5, but his “notes [for those days] were not transcribed” and
“[t]he documentation that was kept by the hospital was not scanned in.”
At approximately 9:30 p.m. on June 5, LMC nurse Rejen Cobarde called Sloman-Moll to
request a discharge order for David. At that time, Sloman-Moll was in the operating room
performing surgery on another patient. Cobarde testified that although LMC ordinarily did not
discharge patients at night, she asked Sloman-Moll to discharge David because David and/or
Zulema asked to leave. Zulema disputed this and testified that nurses told her David was being
discharged because the hospital “needed a bed.” She also testified that she asked to see a doctor,
but no doctor appeared prior to David’s discharge.
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David was still in severe pain when Cobarde asked Sloman-Moll to approve his discharge,
and Cobarde gave him more intravenous morphine before he left the hospital. It is undisputed that
Sloman-Moll’s order for an interventional radiology consult remained open at the time of David’s
discharge and that David was never examined or treated by an interventional radiologist.
Nevertheless, Cobarde marked the interventional radiology order as “completed” without asking
Sloman-Moll about it. Cobarde testified that she “was not concerned” about sending David home
with a critical hemoglobin level.
Zulema testified that after David came home from the hospital, he was “[w]eak and tired”
and did not improve. Friends who visited David testified that he “was tired, he looked sick, he
looked pale” and “was very quiet. Like, it was not David.”
On June 14, 2019, David coughed, ran to the bathroom, and called out for Zulema. When
Zulema arrived in the bathroom, “the sink was full of blood.” David collapsed and “start[ed] to
bleed out” in his wife’s arms. Zulema’s daughter called an ambulance, but Zulema believes David
died before it arrived. David’s death certificate identifies his cause of death as “exsanguination—
or mass bleeding—following tonsillectomy . . . and that the interval that this had been occurring
over was two weeks.”
Zulema sued Sloman-Moll, alleging survival and wrongful death claims, and later amended
her petition to add LMC and an ICU physician, Dr. Pradyumna Mummady, as defendants. During
the jury trial, Wittenberg testified that he believed David died from a ruptured pseudoaneurysm in
his throat that could have been prevented through examination and treatment by an interventional
radiologist. A defense medical expert, Dr. Gilbert Ruiz, testified that he believed David died from
a spontaneous delayed bleed, which he described as a known but unpredictable risk of a
tonsillectomy. Sloman-Moll, testifying in his own defense, told the jury that he believed David
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died from a spontaneous bleed, he did not believe LMC’s nurses were negligent, and his treatment
decisions were not influenced by anything the nurses did or failed to do.
When Zulema rested, the trial court granted Mummady’s motion for directed verdict. The
jury subsequently found LMC’s negligence proximately caused “the occurrence in question”;
Sloman-Moll’s conduct was not a proximate cause of “the occurrence in question”; LMC was
100% responsible for “the occurrence in question”; and “the harm to David” was attributable to
gross negligence. The jury found Zulema was entitled to recover actual damages “resulting from
the death of David Cabrera” and exemplary damages. The jury also found David’s estate was
entitled to recover damages.
Zulema elected to recover solely on her wrongful death claim and voluntarily remitted the
jury’s awards of exemplary damages and future non-economic damages, a portion of the award
for past non-economic damages, and the award of damages to David’s estate. The trial court signed
a final judgment on October 16, 2023, and Zulema subsequently remitted some of the court costs
awarded to her. After the trial court denied LMC’s post-judgment motions, LMC filed this appeal.
ANALYSIS
Sufficiency of the Evidence
In its first issue on appeal, LMC challenges the sufficiency of the evidence to support the
jury’s liability findings. LMC does not dispute that there is sufficient evidence to support a finding
that it, acting through its nurses, breached the applicable standard of care. It argues, however, that
Wittenberg’s testimony was too conclusory or speculative to support findings that: (1) David died
of a pseudoaneurysm; and (2) LMC’s breaches proximately caused his death.
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Standard of Review
When a party challenges the legal sufficiency of an adverse finding on which it did not
have the burden of proof at trial, it must show there is no evidence to support the challenged
finding. Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). In
considering this question, we view the evidence in the light most favorable to the verdict,
“credit[ing] favorable evidence if reasonable jurors could, and disregard[ing] contrary evidence
unless reasonable jurors could not.” In re Est. of Matthews, 510 S.W.3d 106, 117 (Tex. App.—
San Antonio 2016, pet. denied) (internal quotation marks omitted, alterations in original). “The
final test for legal sufficiency must always be whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). “If the evidence at trial would enable reasonable and fair-minded people to
differ in their conclusions, then jurors must be allowed to do so, and we may not substitute our
judgment for” the jury’s. Est. of Matthews, 510 S.W.3d at 117 (internal quotation marks omitted).
When a party challenges the factual sufficiency of an adverse finding on which it did not
have the burden of proof, it must show there is insufficient evidence to support the finding. In re
Matter of Marriage of Thrash, 605 S.W.3d 224, 230 (Tex. App.—San Antonio 2020, pet. denied).
We examine all the evidence, but we may not reverse the judgment unless “the evidence which
supports the jury’s finding is so weak as to be clearly wrong and manifestly unjust.” Flying J Inc.
v. Meda, Inc., 373 S.W.3d 680, 690–91 (Tex. App.—San Antonio 2012, no pet.) (internal quotation
marks omitted).
Applicable Law
Because Zulema’s claims alleged medical malpractice, she bore the burden to prove “to a
reasonable medical probability that the injuries complained of were proximately caused by”
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LMC’s negligence. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). “The two elements of
proximate cause are cause-in-fact and foreseeability.” Pediatrics Cool Care v. Thompson, 649
S.W.3d 152, 158 (Tex. 2022). The cause-in-fact prong “requires proof that (1) the negligence was
a substantial factor in causing the injury, and (2) without the act or omission, the harm would not
have occurred.” Gunn, 554 S.W.3d at 658. The “defendant’s act or omission need not be the sole
cause of an injury, as long as it is a substantial factor in bringing about the injury.” Bustamante v.
Ponte, 529 S.W.3d 447, 457 (Tex. 2017).
The foreseeability prong requires a showing “that a person of ordinary intelligence would
have anticipated the danger caused by the negligent act or omission.” Mariner Health Care of
Nashville, Inc. v. Robins, 321 S.W.3d 193, 205 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
The plaintiff is not required to establish “that the exact sequence of events that produced an injury
[was] foreseeable.” Mason v. AMed-Health, Inc., 582 S.W.3d 773, 790 (Tex. App.—Houston [1st
Dist.] 2019, pet. denied) (internal quotation marks omitted). “[O]nly the general danger must be
foreseeable.” County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).
“In medical-malpractice cases, the general rule is that ‘expert testimony is necessary to
establish causation as to medical conditions outside the common knowledge and experience of
jurors.’” Gunn, 554 S.W.3d at 658 (quoting Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010)).
“It is not enough for an expert simply to opine that the defendant’s negligence caused the plaintiff’s
injury. The expert must also, to a reasonable degree of medical probability, explain how and why
the negligence caused the injury.” Jelinek, 328 S.W.3d at 536. An expert satisfies this requirement
by explaining the factual basis for his opinions. See Bustamante, 529 S.W.3d at 462. “If no basis
for the opinion is offered, or the basis offered provides no support, the opinion is merely a
conclusory statement and cannot be considered probative evidence, regardless of whether there is
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no objection.” Id.; see also Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (“A conclusory
statement asserts a conclusion with no basis or explanation.”).
When called for by the evidence and the opponent’s theory of the case, the expert must
also “explain why the inferences drawn are medically preferable to competing inferences that are
equally consistent with the known facts.” Jelinek, 328 S.W.3d at 536. However, the Texas
Supreme Court has recognized “that in searching for truth, the law does not, and should not, require
proof of an absolute certainty of causation or any other factual issue.” Kramer v. Lewisville Mem’l
Hosp., 858 S.W.2d 397, 405 (Tex. 1993). “The line determining whether an expert opinion is
conclusory is difficult to draw, and close calls must go to the trial court.” Windrum, 581 S.W.3d
at 770 (internal quotation marks and alteration omitted). “[W]hen the evidence falls within the
zone of reasonable disagreement, the court may not substitute its judgment for that of the fact
finder.” Id.
Application
Did Zulema Present Evidence of a Pseudoaneurysm?
We begin by addressing LMC’s contention that Wittenberg did not explain the factual basis
for his opinion that David died from a preventable pseudoaneurysm. After reviewing the record,
we conclude Wittenberg’s testimony on this point was not conclusory or speculative and was
legally and factually sufficient to support a finding that David died from a pseudoaneurysm. See,
e.g., Windrum, 581 S.W.3d at 770; Bustamante, 529 S.W.3d at 462.
As support for his opinions, Wittenberg relied on his experience as an interventional
radiologist, as well as his review of David’s medical records, the autopsy report and photos from
David’s autopsy, David’s death certificate, the depositions of Sloman-Moll and LMC’s nurses,
and the report from defense expert Ruiz. See Windrum, 581 S.W.3d at 774–75 (noting expert’s
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opinion “was based on actual data,” including his own experience). Wittenberg testified that his
understanding of the surgery was, “A tonsillectomy took place; and, at the time of the surgery,
there was bleeding, which was a result of an injury to the lingual artery.” 2 He described a
pseudoaneurysm as “the natural way that arteries react to” trauma and continued bleeding. 3 He
testified a pseudoaneurysm forms when an inner layer of an artery does not heal properly and the
artery’s outer layer:
sort of tries to contain the blood to prevent—to prevent the blood from, you know, continuing to leak out from the vessel. Then your body forms kind of a castle around that, which is contained in sort of like some clotted blood, some platelets, that sort of forms almost like a mesh scaffolding around that outer bulge of the pseudoaneurysm; and so, that’s your body’s kind of temporary way of getting the bleed to stop.
Wittenberg testified David’s falling hemoglobin was a sign of internal bleeding:
The hemoglobin was dropping every single time that it was checked in the ICU. That is an objective finding of ongoing bleeding. If your hemoglobin is decreasing every day, you are bleeding. . . . It’s understandable that patients can lose blood during surgery . . . [but the difference between] the baseline hemoglobin of 14.5 and the first [post-surgery] hemoglobin 12.8, that is more than what you would expect for the tonsillectomy. . . . If you see an initial drop in the hemoglobin, but then it levels off and it stabilizes, that suggests that there was bleeding, but then that bleeding stopped; but, if you see hemoglobin continuing to trend down and go lower and lower and lower, that means that there’s blood loss. There’s bleeding going on somewhere.
Wittenberg added, “The hemoglobin trend over the course of the admission, that is consistent with
a patient who’s bleeding over those five days.”
A defense nursing expert, Sharla Shumaker, similarly testified that “[g]oing from 14 to 7.7
is—is a decline and a loss in blood,” and she agreed falling hemoglobin “is one of the indications”
of bleeding. Likewise, Mummady agreed that the falling hemoglobin levels showed David was
2 Wittenberg described the lingual artery as “at the back part of the mouth of the oral pharynx, sort of at the back part of the base of the tongue.” 3 Zulema testified that after the surgery was over, a doctor told her “that they had cut an artery.”
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losing blood. 4 While Shumaker testified, “There was no evidence of physical bleeding,” she agreed
“that the drop in hemoglobin is a consideration.” Based on the evidence he reviewed, Wittenberg
concluded, “The actively-bleeding artery that was evidenced by decreasing hemoglobin levels,
critically abnormal vital signs, [David] continued to bleed; and, ultimately, that vessel formed a
pseudoaneurysm. When it ruptured, it caused massive-acute exsanguination resulting in [David’s]
untimely death.”
Wittenberg testified the throat pain David complained of on his last day in the hospital was
also consistent with the formation of a pseudoaneurysm:
[T]he throat] doesn’t hold a lot of room for things like swelling; and, all of the nerve endings in there are very sensitive. So, if you develop even a small pseudoaneurysm in the back part of your throat, it would cause a lot of pain. . . . The pain at the back of the throat is consistent with the formation of pseudoaneurysm at that location.
Wittenberg further testified, “There is no other reason [than a pseudoaneurysm] for acute onset of
pain five days after surgery.”
Finally, Wittenberg testified that David’s coughing before his death was “consistent with
the pseudoaneurysm” because “the presence of a pseudoaneurysm in the back of the throat would
be near to irritating. It can cause a coughing reflux.” He added, “[W]hen you cough, it causes an
entry pressure in the back of the throat, and that pressure could be enough to rupture the vessel.”
He also explained that after a pseudoaneurysm ruptures, “just fragments of a transected or a
transected vessel 5 is all you’ll see, because once that pseudoaneurysm ruptures, the entire artery
loses all of its integrity.” He showed the jury exactly that in David’s autopsy photos: “You see the
artery, and then when it gets to the point, where the [medical examiner’s] glove is, there is no more
4 Mummady later testified, “Dropping [hematocrit and hemoglobin] is mainly—most of the time because of bleeding, but sometimes it can be multiple other reasons.” 5 Although the parties did not explicitly define the term, the evidence would allow the jury to understand that a transected vessel is one that has exploded or disintegrated.
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artery. That’s where the vessel, basically, exploded disintegrated or exploded after the
pseudoaneurysm ruptured.”
LMC argues, however, that the evidence presented at trial either does not support or
contradicts Wittenberg’s conclusion that David died from a pseudoaneurysm. See City of Keller,
168 S.W.3d at 813 (“[I]f an expert’s opinion is based on certain assumptions about the facts, we
cannot disregard evidence showing those assumptions were unfounded.”). First, LMC contends
Wittenberg’s theory required evidence that David experienced high blood pressure. As support for
this assertion, it notes that Wittenberg testified the body’s initial reaction to internal bleeding is
that the affected artery “clamps down,” or vasoconstricts, which causes the patient’s blood pressure
to increase. Because Wittenberg also testified that David’s medical records show three instances
of “critically-low blood pressure measurements,” LMC contends his ultimate opinion is
unsupported by the documentary evidence.
The record does not support LMC’s contention. Wittenberg did not testify that internal
bleeding or the formation of a pseudoaneurysm causes a sustained or persistent spike in blood
pressure. To the contrary, he testified that “your body can only maintain that [increased blood
pressure] for so long”; the formation of a pseudoaneurysm will temporarily stop internal bleeding;
and “the vasoconstriction goes away” when bleeding stops. He also testified that active bleeding
will eventually lead to a decrease in blood pressure and “when you have blood pressure levels that
are critically low over the course of three consecutive hours”—as the medical records from June
3 show David experienced—“that’s an objective sign . . . of a patient that’s actively bleeding[.]”
Next, LMC argues there is no documentary evidence that David continued to bleed after
the surgery. This is not correct; Shumaker testified the records contain a nurse’s notation that David
“coughed blood” on June 4. Furthermore, Wittenberg testified that any internal blood loss would
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have gone to David’s stomach, lungs, neck, or “the secretion in sputum that was suctioned out
from his neck,” and he noted David’s medical records from June 4 and 5 showed “several notations
by the nurse of medium-to-large quantities of blood-tinged sputum suctioned from the oral
pharynx.” 6
Additionally, as noted above, Zulema testified that she saw blood dripping from David’s
face in the ICU and asked nurses about it. LMC argues Zulema saw “blood-tinged sputum,” not
blood, and it contends she “is not an expert witness and cannot discern the difference between
blood and blood-tinged sputum[.]” But LMC cites no authority holding that an expert witness is
required to identify blood—a bodily fluid that is within a layman’s general experience and
common knowledge. See, e.g., Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006)
(expert testimony is required on matters that are beyond a layman’s “general experience and
common knowledge”). Sloman-Moll testified that blood and blood-tinged sputum are visually
distinct, noting that blood-tinged sputum has “a little bit of pink to it. Whereas blood has a thicker
consistency, and it is more viscous and easy to distinguish.” But, again, Zulema testified she saw
David bleeding in the hospital, and the jury was free to credit that testimony. We reject LMC’s
suggestion otherwise. See, e.g., Est. of Matthews, 510 S.W.3d at 117 (we may not disregard
evidence that reasonable people could credit).
LMC also points to evidence that a process called hemodilution can cause falling
hemoglobin even if there is no internal bleeding. 7 But Wittenberg did not believe David’s medical
records supported a finding of hemodilution. He explained that doctors “look at the hematocrit to
hemoglobin ratio” to determine whether hemodilution has occurred, and that under normal
6 Wittenberg described blood-tinged sputum as “blood and sputum mixed together.” While LMC’s witnesses testified that blood and blood-tinged sputum are distinct, Wittenberg testified LMC’s documentation of the sputum “was very minimal” and did not show “how dark was it, how bloody was it, or what was the actual volume[.]” 7 Wittenberg defined hemodilution as an increase in the overall volume of blood due to fluid intake.
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circumstances, “[t]hat ratio should be approximately 3/1 hematocrit to hemoglobin.” Both Ruiz
and Mummady agreed that the hematocrit and hemoglobin should usually be a 3-to-1 ratio.
Wittenberg testified a normal ratio is inconsistent with a finding of hemodilution because “if there
is hemodilution where your blood is diluted, the hematocrit will decrease much more rapidly than
the hemoglobin.” Wittenberg testified that David’s hematocrit and hemoglobin levels held a
consistent 3-to-1 ratio and, as a result, “[t]here is no hemodilution[.]” He further noted that David’s
“input fluid versus the output of urine [was] nearly identical over the course of the stay. There’s
no times where there’s been a massive influx of fluid without the corresponding output of urine.”
Wittenberg told the jury that without evidence of hemodilution, “The only possible cause of such
a precipitous drop of hemoglobin over such a short amount of time is bleeding.”
LMC next argues the evidence shows the bleeding that killed David occurred on the right
side of his throat, but the bleeding Sloman-Moll saw during the operation was on the left.
Wittenberg addressed this apparent discrepancy. He told the jury, “Dr. Sloman-Moll testified
[during his deposition] that he wasn’t sure which side the bleeding was coming from, for certain,
and that he saw bleeding in both tonsillar fossas[.]” 8 While Sloman-Moll testified at trial that he
saw intraoperative bleeding only on the left side, the jury could properly consider this
inconsistency in deciding the credibility of his trial testimony. See Cruz v. Mor-Con, Inc., 672
S.W.3d 175, 185 (Tex. App.—Tyler 2023, no pet.).
Wittenberg also testified there is significant “cross-filling” between blood vessels in the
left and right sides of the neck, “where sometimes the right supplies left and left supplies right. So,
you can have a lot of bleeding in one, or either side, that could be caused from only one vessel on
one side[.]” He explained:
8 The tonsillar fossa are small cavities in the back of the throat where the tonsils rest.
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“Collateral circulation” is a normal thing that we all have in various parts of the body. That means that branches from arteries in the left and arteries in the right cross-fill, one side fills the other. That’s why we’re able to do these types of procedures where we block off arteries. . . . [B]ecause there are collaterals [in the neck], you can block off the main-feeding arteries to an area, but that tissue will not die.
Sloman-Moll disputed this explanation and testified “there was not a collateral flow” in the blood
vessels in David’s throat. However, he relied on the post-surgery CT angiogram to reach this
conclusion. Wittenberg and Sloman-Moll disagreed about whether David’s injured lingual artery
could even be seen on that angiogram, 9 and both Wittenberg and the defense expert, Ruiz, testified
that a CT angiogram is not ideal to evaluate smaller arteries like the lingual artery. 10 Furthermore,
Sloman-Moll himself testified, “The tonsils are very vascular,” with “4-to-5 major blood supply
to them, and they [sic] are often collaterals between those 4 or 5 connections.”
LMC also argues the medical examiner did not note any collateral circulation in the autopsy
report. However, Wittenberg testified collateral circulation is “not something that you would make
a notation of on an autopsy or even see on a CT [angiogram]. It’s something that exists, and we
see it on angiograms that we do every single day.” Wittenberg told the jury, “[David] did have
collateral circulation on that part of the body. Everybody has it.” He explained that based on his
experience as an interventional radiologist, he knows collateral circulation is what allows doctors
in his field to “embolize vessels without destroying tissue.” 11 He also explained that the face and
neck differ from other parts of the body, such as the heart and brain, where “there’s no collateral
circulation” and doctors therefore cannot safely “block off arteries” like they can in the neck.
9 The angiogram itself is not included in the appellate record. 10 Wittenberg testified that a CT angiogram “doesn’t assess the lingual artery for vascular damage for irregularities caused by trauma. You need a catheter angiogram done by an Intervention Radiologist to do that.” Ruiz testified that “not everything shows on a CT angiogram” and that a CT angiogram “rules out any major vessel disruption[.] . . . When you know it’s not a major vessel disruption, it’s probably a smaller vessel.” 11 Wittenberg described embolization as a minimally invasive procedure that stops bleeding by injecting material to “block of[f] the artery.”
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LMC next argues Wittenberg “admitted that he did not know whether the pseudoaneurysm
existed on the date of discharge.” It suggests the pseudoaneurysm may have formed after David
left the hospital and therefore would not have been detected by an interventional radiologist. As
support, LMC relies on Wittenberg’s deposition testimony where he answered “I don’t know” to
the question “[W]as the pseudoaneurysm present upon [David’s] discharge from the hospital?”
But he also testified at trial that he believed an interventional radiologist “more likely than not,
would have seen the abnormal vessel” and repaired it. He further testified, as explained above, that
David’s symptoms during his hospitalization were consistent with the formation of a
pseudoaneurysm. And, significantly, Sloman-Moll testified that he understood Wittenberg’s trial
testimony to be that the pseudoaneurysm formed at some point between June 4 and June 5—i.e.,
when David was still in the hospital. To the extent Wittenberg’s trial testimony conflicted with his
deposition testimony, the jury had the sole authority to resolve that conflict. See Cruz, 672 S.W.3d
at 185.
LMC further argues the medical examiner did not find a pseudoaneurysm during David’s
autopsy, and Sloman-Moll testified he did not see a pseudoaneurysm in David’s autopsy photos.
As Wittenberg explained to the jury, however, the autopsy photos showed David’s artery had
“exploded” or “disintegrated.” LMC does not identify any evidence that a pseudoaneurysm in an
artery that had exploded or disintegrated would be visible in autopsy photos.
Finally, LMC argues Wittenberg did not adequately exclude the alternative theory of a
delayed spontaneous bleed. See Jelinek, 328 S.W.3d at 536. Sloman-Moll testified that
“sometimes, two weeks, or even three weeks [after a tonsillectomy], the patient bleeds profusely,
severely, from a one- or two-millimeter blood vessel, and it is so fast that they can’t get to the ER,
and they can’t do anything about it.” Ruiz testified such a spontaneous post-surgery bleed can
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occur “when the area that has been cauterized or controlled forms a little scab. The scab comes
off, and the vessel underneath will bleed. It’s something that is not rare after a tonsillectomy.”
But while Sloman-Moll opined that the transected artery shown in David’s autopsy photos
was “consistent with a spontaneous bleed,” neither he nor Ruiz explained how a “scab com[ing]
off” and beginning to bleed would create enough pressure to wholly rupture the blood vessel.
Wittenberg, in contrast, testified, “When a pseudoaneurysm forms, the actual hole in the wall of
the vessel continues to grow so that, over time, the pseudoaneurysm sac is exposed to greater and
greater pressure, and greater and greater blood volume until it actually ruptures.” He testified, “The
continuing decrease in hemoglobin in a patient who is continuing to bleed is not consistent with a
patient who had surgery, healed normally, and then went out to spontaneously have a rupture two
weeks later. It doesn’t make any sense.” He also explained that a pseudoaneurysm was the only
plausible explanation “for acute onset of pain five days after surgery,” and neither Sloman-Moll
nor Ruiz controverted that testimony. Finally, Ruiz testified that “[t]he vast majority” of patients
who experience a spontaneous delayed bleed do not die; that he had personally never had a patient
die in that manner during his 40-year career as an ear, nose, and throat surgeon; and that it is
“medically possible, but not probable” to die from a spontaneous delayed bleed. This testimony
constitutes “verifiable medical evidence” to explain why Wittenberg’s opinion was medically
superior to LMC’s competing theory. See Jelinek, 328 S.W.3d at 536.
After reviewing the record, we hold that Wittenberg did not rely on unexplained
conclusions or “ask the jury to ‘take his word for it’” that David died of a pseudoaneurysm. See
Windrum, 581 S.W.3d at 769. “In addition to providing his resume and describing his experience,
[Wittenberg] provided enough reasons” to support his opinion on that point. See id. at 770–71. We
therefore overrule LMC’s arguments to the contrary.
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Did Zulema Present Sufficient Evidence of Causation?
LMC also argues Wittenberg’s testimony was too speculative to support his opinion that
LMC’s nurses proximately caused David’s pseudoaneurysm and subsequent death. Again, we
disagree.
LMC first argues that Wittenberg conceded the nurses’ breaches “did not cause the
formation of the pseudoaneurysm.” See, e.g., Gunn, 554 S.W.3d at 658 (plaintiff must establish
defendant’s conduct was cause-in-fact of the injury). Wittenberg testified, however, that David’s
intermittent bleeding during his hospitalization—as reflected by his consistently falling
hemoglobin levels—caused the pseudoaneurysm and that the bleeding would have been treated if
the nurses had alerted their supervising nurses and physicians to David’s hemoglobin levels.
Wittenberg testified that nurses “should have an understanding of signs and symptoms of bleeding.
They may not understand, directly, how that bleeding would be fixed; but, they would understand
signs and symptoms of bleeding,” including “critical drops in hemoglobin.”
It is true, as LMC notes, that Sloman-Moll testified LMC’s nurses reported the critical 7.7
hemoglobin level to him. But Wittenberg testified, “[A] nurse is an advocate for the patient; and,
if something doesn’t seem right from a nursing standpoint, there’s a chain of command that they
should follow in order to address that.” He added that if a nurse notifies a doctor of a critically-
low level and the doctor takes no action, “it’s necessary for the nurse to talk to the Charge Nurse”
and then to proceed up the nursing chain of command from there. Wittenberg’s testimony on this
point is consistent with LMC’s internal policies, which state: “Possible life threatening conditions
may be present when established ranges of laboratory critical test results are obtained. Quick
treatment of the patient’s physical condition is necessary.”
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Wittenberg testified that completing the interventional radiology consult would have not
only detected and treated the continued bleeding but also prevented the formation of the
pseudoaneurysm that caused David’s death. He also tied the failure to complete the interventional
radiology consult to the conduct of LMC’s nurses:
At the time of discharge, nurses are required to go through the chart and reconcile any open orders in order to allow a discharge to go forward; and, even at that time, that was the last chance to realize that there was an open Interventional Radiology consult that was never completed before the discharge actually occurred. So, at that point, Nurse Cobarde was sort of the last line of defense to get that Interventional Radiology consult done, to have seen that it was still an open order, before [David] was discharged; but, Nurse Cobarde failed [David] by completing the order that was never actually completed, instead of recognizing that it was an open order that needed to be completed and calling Interventional Radiology and notifying Dr. Sloman-Moll that his order for Interventional Radiology consult was still open at the time of discharge.
LMC argues that this causation testimony does not support the jury’s liability finding
because Sloman-Moll testified the nurses’ conduct did not influence his treatment decisions.
Relying on our sister court’s opinion in Methodist Hospital v. German, 369 S.W.3d 333, 336 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied), LMC contends that when a treating doctor testifies
that he would not have changed his course of treatment if he had received different or additional
information from nursing staff, that testimony conclusively shows the nurses’ conduct was not a
cause-in-fact of the injury.
We do not believe German stands for such a wide-ranging principle of law. The challenged
expert in German testified the appellant hospital’s nursing staff should have detected—and alerted
the plaintiff’s treating doctors to—symptoms that he believed showed the plaintiff experienced an
adverse reaction to a medication. See German, 369 S.W.3d at 340–41, 345–46. Similar to Sloman-
Moll’s testimony in this case, the treating doctors in German testified they were either already
aware of the symptoms or would not have done anything differently if they had been aware. Id. at
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347–49. Based on this testimony, the German court held that the challenged expert’s opinion that
the nurses’ conduct proximately caused the plaintiff’s injuries was based on “conjecture, guess, or
speculation[.]” Id. at 349. The court noted that while “the jury could have disbelieved the treating
doctors’ testimony, [the plaintiff] still carried the burden of proving by a reasonable medical
probability” that the nurses’ conduct caused his injuries. Id. at 348.
We note, however, that none of the treating doctors who testified in German were
defendants at the time of the trial in that case. 12 This is a critical factual distinction. The result
LMC urges here would require us to hold that the testimony Sloman-Moll offered in his own
defense was conclusive as to the cause of David’s death and rendered Wittenberg’s contrary
testimony speculative as a matter of law. We decline to hold that a co-defendant doctor may
unilaterally break the chain of causation arising out of a nurse’s breach simply by declaring, in a
lawsuit where his own actions are challenged, that the breach did not affect his treatment
decisions. 13 To the extent German can be interpreted to lead to that result, we disagree with it.
Furthermore, “[t]he documentary record [in German] reflect[ed] that the doctors had all of
the information they needed available to them[.]” Id. at 349. For several reasons, we cannot reach
the same conclusion here. First, the documentary record in this case establishes that no one
involved in David’s care knew whether his hemoglobin levels continued to drop on his last day in
the hospital. While Sloman-Moll testified he knew about the critical 7.7 hemoglobin level and it
did not affect his decision-making, he did not testify that he would have been similarly
unconcerned about any further drops in David’s hemoglobin levels.
12 “After settling with his doctors, [the plaintiff in German] proceeded to trial against the sole remaining defendant, The Methodist Hospital.” German, 369 S.W.3d at 336. 13 Relying on the Texas Supreme Court’s 1975 decision in Gregory v. Texas Employees Insurance Association, LMC argues “the jury could not disregard Sloman-Moll’s uncontradicted testimony about the facts” because he testified as both a fact witness and an expert witness and “[u]ncontradicted testimony of expert witnesses must be taken as true insofar as it establishes facts[.]” We do not interpret Gregory to require a jury to credit the factual assertions of a testifying defendant. See generally 530 S.W.2d 105 (Tex. 1975).
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Second, Rebecca Ramirez, a nurse who cared for David on the medical-surgical floor on
June 5, testified that she did not report David’s new onset of throat pain to Sloman-Moll. Cobarde,
who cared for David later that day, testified that she told Sloman-Moll about the throat pain, but
she also agreed she did not record that report in David’s medical records, testifying, “I can’t put
down every detail what I talked to.” Based on this evidence, the jury could have rationally
concluded the nurses did not alert Sloman-Moll about this symptom when he could have taken
steps to address it.
Third, nothing in David’s records indicated that the nurses asked Sloman-Moll about the
pending interventional radiology order before David was discharged. Although Sloman-Moll
personally entered the order and was therefore aware of its existence, the evidence showed
Cobarde contacted him to request David’s discharge late at night while Sloman-Moll was
performing surgery on another patient. Zulema’s nursing expert, Zimmerman, offered testimony
that would have permitted the jury to conclude that fact was significant here:
People don’t always listen. They are distracted. They didn’t understand what you were saying. There are many reasons why people may not respond appropriately initially, and you [nurses] need to re-approach[.] And then, if you are not given a response that you find satisfactory with your re-approach, then you are obligated— not suggested—but you are obligated to take additional action; and, the most common additional action is the [nursing] chain of command.
While Zimmerman was not qualified to testify on causation, both she and Shumaker, the defense’s
nursing expert, testified that a nurse’s duty to a patient cannot be superseded by a hospital policy,
by a doctor’s order, or by a doctor’s failure to act. And, as noted above, Wittenberg—who was
qualified to testify on causation—testified the nurses should have “advocated” for David because
they were his “last line of defense” to see that the interventional radiology consult was
appropriately resolved before his discharge.
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Finally, the plaintiff’s own expert in German “conceded that [the plaintiff’s] many
symptoms and complications were consistent with diagnoses other than” the one he suggested.
German, 369 S.W.3d at 348. This concession matched the testimony of the treating doctors, who
told the jury the plaintiff’s platelet counts were consistent with “a lot of alternative explanations”
other than the one advocated by the plaintiff’s expert. Id. at 347. Here, however, the jury heard
sharply conflicting testimony about the cause of David’s falling hemoglobin levels, and LMC did
not present any evidence to controvert Wittenberg’s testimony about the acute onset of throat pain
that occurred on David’s last day in the hospital. Accordingly, while the existence of “alternative
explanations” was essentially undisputed in German, the same cannot be said in this case.
After reviewing the record, we conclude it shows Wittenberg “provided a basis for his
opinion which was more than mere ipse dixit.” Windrum, 581 S.W.3d at 770–71; see also
Bustamante, 529 S.W.3d at 462. The jury could therefore “reasonably rely on [his] conclusions
and decide which experts to give greater weight.” Windrum, 581 S.W.3d at 774–75. We further
hold that Wittenberg’s testimony was legally and factually sufficient to support the jury’s finding
that the nurses’ negligence was a substantial factor in bringing about David’s death, that David
would not have died but-for the nurses’ negligence, and that a person of ordinary intelligence
would have anticipated the danger caused by the nurses’ negligence. See Bustamante, 529 S.W.3d
at 468–72; Mariner Health Care, 321 S.W.3d at 210.
We therefore overrule LMC’s first issue.
Jury Charge Error
In its second issue, LMC argues the trial court erred in the submission of Questions 1 and
2 of the jury charge and Zulema therefore failed to obtain the findings necessary to recover under
the Wrongful Death Act.
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Standard of Review and Applicable Law
We review a trial court’s submission of jury questions and instructions for abuse of
discretion. See, e.g., Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex.
2009). The Texas Rules of Civil Procedure provide that a trial court “shall, whenever feasible,
submit the cause upon broad-form questions.” TEX. R. CIV. P. 277. The court’s charge must include
“such instructions and definitions as shall be proper to enable the jury to render a verdict.” Id. “The
trial court has great discretion in submitting the jury charge . . . subject to the requirement that the
questions submitted must control the disposition of the case, be raised by the pleadings and
evidence, and properly submit the disputed issues for the jury’s deliberations.” Villegas v. Tex.
Dep’t of Transp., 120 S.W.3d 26, 37 (Tex. App.—San Antonio 2003, pet. denied) (internal
quotation marks omitted).
Question 1 asked: “Did the negligence, if any, of [Sloman-Moll and/or LMC] proximately
cause the occurrence in question?” Question 2, which was conditioned on at least one “Yes”
answer to Question 1, stated, “For each person you found caused or contributed to cause the
occurrence in question, find the percentage of responsibility attributable to each[.]” 14 LMC argues
that by submitting these questions with “the occurrence in question” instead of “the death of David
Cabrera,” the trial court permitted Zulema to recover without obtaining a jury finding on a required
element of her wrongful death claim.
As LMC notes, the Texas Wrongful Death Act permits recovery only for “an injury that
causes an individual’s death.” TEX. CIV. PRAC. & REM. CODE ANN. § 71.002; Kramer, 858 S.W.2d
14 Both Question 1 and Question 2 identified Sloman-Moll and LMC as the only parties whose alleged negligence was at issue.
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at 404. However, LMC has not cited any appellate opinions reversing a wrongful death verdict
because the charge asked whether the defendant caused the “occurrence in question.”
On this point, LMC primarily relies on the Texas Supreme Court’s opinions in Kramer v.
Lewisville Memorial Hospital and Texas Department of Transportation v. York. See Kramer, 858
S.W.2d at 403–04; Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 848 (Tex. 2009) (per curiam).
While both Kramer and York involved wrongful death claims, neither addressed the precise
question at issue here. In Kramer, the Texas Supreme Court considered “whether Texas permits
recovery for lost chance of survival” and held that neither the Wrongful Death Act nor the Texas
Survivorship Statute supports such a claim. Kramer, 858 S.W.2d at 398. Here, in contrast, Zulema
did not attempt to recover on a “lost chance of survival” claim. Kramer does not require the jury
charge in this wrongful death case to use the phrase “the death of David Cabrera,” instead of “the
occurrence in question.” See id.
In York, a premises liability case, the liability question submitted to the jury contained a
special defect instruction, but not an instruction on ordinary premises defect. York, 284 S.W.3d at
846. The Texas Supreme Court held the plaintiff could not recover under a special defect theory
because the road condition at issue was not a special defect as a matter of law. Id. at 845–48. It
further held the plaintiff also could not recover under an ordinary premises liability claim because
the charge did not ask the jury to consider the parties’ knowledge of the road condition. Id. at 848.
While York certainly stands for the proposition that a plaintiff cannot recover on a theory she did
not submit to the jury, we do not believe its analysis mandates a conclusion that a trial court
reversibly errs by submitting a liability question that contains the phrase “the occurrence in
question” in a wrongful death case.
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Our own exhaustive research located only two Texas opinions that address this question.
In both cases, the reviewing court found no error in the charge.
In Star Enterprise v. Marze, the decedent, Windel B. Marze, died after a fall. 61 S.W.3d
449, 454 (Tex. App.—San Antonio 2001, pet. denied). The fall itself did not kill Marze; instead,
he died from an infection caused by the surgery that treated the injuries he sustained in the fall. Id.
While Marze was alive, he brought a premises liability suit against the owner of the premises
where he fell; after his death, his survivors brought wrongful death claims against the property
owner. Id. The court’s charge instructed the jury to consider whether the property owner’s
negligence proximately caused “the occurrence in question,” and the jury found it did. Id. at 455.
Like LMC, the property owner in Marze argued the charge’s use of “occurrence in question”
omitted an element of the wrongful death claim. Id. at 455–56.
We concluded that although the property owner disputed its own negligence, it “offered no
controverting evidence that Mr. Marze’s death was caused by something other than” the injuries
he suffered in the fall. Id. at 459. We held that under those circumstances, “the ‘occurrence in
question’ and the ‘death of Windel B. Marze’ ha[d] virtually the same meaning,” and “[a]s a result,
the charge contained no error.” Id. Here, while LMC presented evidence that David’s death
resulted from something other than its own negligence, Sloman-Moll testified “that if [David]
hadn’t had his tonsillectomy, that wouldn’t have proceeded to have pseudotumor or ruptured blood
vessel due to the tonsillectomy. There would be no trauma to cause that, and he probably would
not have had that incident.” Based on this testimony, the trial court could have relied on our prior
analysis in Marze to conclude there was no meaningful difference between “the occurrence in
question” and “the death of David Cabrera.” See id.
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Our sister court’s opinion in THI of Texas at Lubbock I, LLC v. Perea also addresses the
question at issue here. See generally 329 S.W.3d 548 (Tex. App.—Amarillo 2010, pet. denied). In
Perea, as in this case, a patient’s survivors brought wrongful death claims against a hospital based
on the alleged negligence of the hospital’s nurses. Id. at 555, 561–62. The liability questions in
Perea asked the jury to determine whether the hospital’s negligence proximately caused “the injury
in question.” Id. at 565. The hospital argued the liability question should have asked the jury to
determine whether the hospital’s negligence proximately caused “the death of” the decedent and
that this purported error omitted a necessary element of the plaintiffs’ wrongful death claim. Id. at
566.
The Perea court rejected this argument. The court first noted that the wording of the
challenged question was consistent with the Texas Pattern Jury Charge, which provides “that ‘[i]n
a case involving death, the word “death” may be used instead of “injury[.]”’” Id. at 569 (emphasis
in original). The court recognized that while “the Texas Pattern Jury Charges are not ‘law,’ they
are heavily relied upon by bench and bar and based on what the State Bar Committee perceives
the present law to be.” Id. (citing H.E. Butt Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.—San
Antonio 1996), aff’d, 985 S.W.2d 22 (Tex. 1998)). The court explained:
The trial court’s charge instructed the jury that, absent a proper legal definition for a term, the jury should attribute the “meaning commonly understood” to the words in the charge. Given the facts of this case and the similarity in the meanings of the terms “injury” and “death,” as a precipitant to damages, we cannot say that, as a matter of law, a reasonable juror would have been misguided by the trial court’s instruction. This is particularly so when the vast majority of the evidence at trial, both testimonial and documentary, was related to [the decedent’s] manner of death[.] . . . In fact, during the trial court’s hearing on the jury instructions, THI’s counsel affirmatively stated that “[t]he only evidence of injury is death.”
Id. (emphasis added).
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We find this analysis persuasive. Here, as in Perea, the record shows the trial court relied
on the Texas Pattern Jury Charge in deciding to overrule LMC’s objection. While the charge in
this case used the phrase “occurrence in question” rather than the “injury in question” language
used in Perea, we do not believe this distinction, standing alone, renders Perea’s analysis
inapplicable here. Furthermore, like the Perea court, we believe it is significant that the evidence
and argument presented at trial focused squarely on the cause of David’s death. See id. On this
record, we disagree with LMC’s assertion that the jury might have been confused about the
“occurrence in question” it was being asked to consider.
The Perea court also noted that “the answers sought by [the hospital] can be found in” the
charge’s damages questions, which “sought to establish damages resulting from [the decedent’s]
death.” Id. at 570. The same is true here. While Questions 1 and 2 asked the jury to determine
whether LMC proximately caused the “occurrence in question,” Question 5—the only damages
question upon which Zulema elected to recover—instructed the jury to limit an award of damages
to those “resulting from the death of David Cabrera[.]”
In short, the only two cases we have found that address this specific issue are both contrary
to LMC’s position. Because we review jury charge error under an abuse of discretion standard, we
cannot say the trial court behaved arbitrarily, unreasonably, or without reference to guiding rules
by using “the occurrence at issue” instead of “the death of David Cabrera” in Questions 1 and 2.
See Hawley, 284 S.W.3d at 856; Marze, 61 S.W.3d at 459; Perea, 329 S.W.3d at 570.
We therefore overrule LMC’s second issue.
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CONCLUSION
We affirm the trial court’s judgment. We render judgment against The Hanover Insurance
Company, the surety on LMC’s supersedeas bond, for performance of the judgment and costs
taxed against LMC. See TEX. R. APP. P. 43.5.
Beth Watkins, Justice
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