Ponte v. Bustamante ex rel. Bustamante

490 S.W.3d 70, 2015 Tex. App. LEXIS 5483, 2015 WL 3485422
CourtCourt of Appeals of Texas
DecidedMay 28, 2015
DocketNo. 05-12-01394-CV
StatusPublished
Cited by8 cases

This text of 490 S.W.3d 70 (Ponte v. Bustamante ex rel. Bustamante) 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
Ponte v. Bustamante ex rel. Bustamante, 490 S.W.3d 70, 2015 Tex. App. LEXIS 5483, 2015 WL 3485422 (Tex. Ct. App. 2015).

Opinions

OPINION ON REHEARING

Opinion by

Justice Whitehill

We deny appellees’ motion for rehearing. On the Court’s own motion, we withdraw our opinion dated December 31, 2014, and vacate the judgment of that date. This is now the Court’s opinion.

Appellees’ daughter Daniella was born prematurely. Her treating physicians included appellants Enrique N. Ponte Jr., M.D., and Jorge Fabio Llamas-Soforo, M.D. Despite the doctors’ efforts, Daniella eventually went blind in her right eye and lost most of the vision in her left eye. Appellees, acting on Daniella’s behalf, sued Ponte, Llamas, and their employers. The case was tried to a jury, which made findings in appellees’ favor. The trial judge rendered judgment against appellants based on the jury’s findings, reduced by settlement credits. Ponte, Llamas, and their employers appealed. Because appel-lees adduced no non-conclusory evidence of causation, we reverse and render judgment that appellees take nothing.

I. Background

A. Facts

The evidence adduced at trial supported the following facts. Appellee Marcela Bustamante gave birth to Daniella at Del Sol Medical Center in El Paso on May 19, 2005. The admission note describes Dan-iella as weighing 600 grams at birth and as having a “23 week 1 day gestational age.” She was admitted to Del Sol’s neonatal intensive care unit. Appellant Ponte, a neuroneonatologist and an employee of appellant Pediatrix, was medical director of Del Sol’s neonatal ICU. Ponte was Daniel-la’s attending physician while she was in Del Sol’s neonatal ICU.

Daniella suffered from several medical problems related to her premature birth, including seizures, bleeding and inflammation in the brain, and patent ductus arter-iosus, which is a condition involving the blood vessels near her heart that required [74]*74surgery to repair. Ponte was concerned that Daniella would eventually develop a damaging eye condition called retinopathy of prematurity (ROP), which involves abnormal blood-vessel growth in the retina and can cause scarring, detachment of the retina, and blindness.

Ponte contacted appellant Llamas, an ophthalmologist, and asked him to examine Daniella. Llamas examined Daniella’s eyes on July 4, 2005, and he observed no sign of ROP. Llamas’s note from the examination reflects that there was to be a follow-up examination in four weeks. Llamas examined Daniella again on August 1. During that examination he determined that Daniella had developed ROP, and he recommended surgical treatment of the ROP as soon as possible. He performed the surgery on August 4. That procedure involved using a laser to burn parts of Daniella’s retinas. The surgery sacrifices the patient’s peripheral vision to some extent to conserve his or her “central vision.”

At some point after the August 4 surgery, Daniella’s right retina became detached. As a result, she is blind in her right eye, and eventually the eye may have to be removed. She has some vision in her left eye, but it is significantly impaired. There was evidence that Daniella must wear glasses and must hold symbols a few inches from her left eye in order to see them. There was also evidence that she suffers from other conditions, such as cerebral palsy, and that she is developmentally delayed to an undefined extent.

B. Procedural history and issues on appeal

In 2008, appellees, as next friends of Daniella, sued appellants and Del Sol Medical Center’s owners for negligence and gross negligence that allegedly caused Daniella’s vision impairment. The owners settled with appellees before trial. The remaining claims were tried to a jury in 2011. The trial judge submitted jury questions regarding the negligence of Ponte, Llamas, and Del Sol Medical Center. He did not submit any questions regarding any independent negligence by Pediatrix or by Llamas’s professional association.

The jury found Ponte, Llamas, and Del Sol Medical Center negligent. It apportioned 45% of the responsibility for Daniel-la’s injury to Ponte, 45% to Llamas, and 10% to Del Sol. For damages, the jury found that Daniella would incur future medical expenses of $962,000 after she turned 18 and future attendant care expenses of $988,000 after she turned 18. The jury also found damages for Daniella’s pain and mental anguish, disfigurement, and physical impairment totaling $174,000. Because the verdict was not unanimous, the jury did not answer the question about Ponte’s and Llamas’s gross negligence.

The parties engaged in post-verdict motions practice. The trial judge signed a final judgment, a corrected final judgment, and finally a second corrected final judgment. In the second corrected final judgment, the judge rendered judgment against appellants based on the jury verdict, adjusted to account for the settlement credit. In that judgment, Llamas and his professional association were held jointly and severally liable for about $873,000, and Ponte and Pediatrix were separately held jointly and severally liable for the same amount.

II. Sufficiency of the Proximate Cause Evidence

Appellants argue that the evidence is legally insufficient to support the jury’s findings that Ponte’s and Llamas’s negligence proximately caused any injury to Daniella’s vision. Appellants preserved their legal sufficiency challenge by means [75]*75of a motion for judgment notwithstanding the verdict attacking the legal sufficiency of the evidence of proximate cause.4

A. Standard of review

When an appellant attacks the legal sufficiency of the evidence to support an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. If evidence is so weak that it does no more than create a surmise or suspicion of the matter to be proved, the evidence is no more than a scintilla and, in legal effect, is no evidence. The evidence is legally sufficient if it is sufficient to enable reasonable and fair-minded people to reach the verdict under review. In conducting our review, we view the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. We must credit evidence favorable to the verdict if a reasonable person could, and we must disregard contrary evidence unless a reasonable person could not.5

B. Applicable law

In a medical-malpractice case, the plaintiff must prove the existence of a legal duty, a breach- of that duty by the defendant, proximate causation, and damages.6 Proximate cause has two sub-elements of foreseeability and cause in fact.7 Foreseeability requires proof that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission.8 Cause in fact requires proof (1) that the defendant’s negligence was a substantial factor in bringing about the injuries and (2) that absent the negligence — that is, but for the negligent act or omission — the harm would not have occurred.9 The plaintiff must introduce evidence of a “reasonable medical probability” or a “reasonable probability” that her injury was caused by the defendant’s negligence, “meaning simply that it is ‘more likely than not’ that the ultimate harm or condition” resulted from the defendant’s negligence.10

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Bluebook (online)
490 S.W.3d 70, 2015 Tex. App. LEXIS 5483, 2015 WL 3485422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ponte-v-bustamante-ex-rel-bustamante-texapp-2015.