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MEMORANDUM OPINION
No. 04-08-00414-CV
Rosalyn BROWN, Appellant
v.
BAPTIST HEALTH SERVICES, INC. and/or Baptist Health Services, Inc. doing business as St. Luke’s Baptist Hospital, Appellee
From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2006-CI-09447 Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: April 29, 2009
REVERSED AND REMANDED
Rosalyn Brown appeals the trial court’s order granting the no-evidence summary judgment
filed by Baptist Health Services, Inc. and/or Baptist Health Services, Inc. doing business as St.
Luke’s Baptist Hospital. Brown sued the Hospital for negligence, and the Hospital moved for
summary judgment asserting that Brown could produce no-evidence with regard to the element of 04-08-00414-CV
proximate cause. We reverse the trial court’s judgment and remand the cause to the trial court for
further proceedings.
BACKGROUND
Brown underwent a total hip replacement operation performed by Dr. Uwe Pontius. The
morning after the operation, Brown was complaining of numbness in her leg. When Dr. Pontius
examined Brown, he discovered the strap of the abductor pillow, that was placed on Brown to
prevent post-surgical hip dislocation, was too tight around her knee. Brown was subsequently
diagnosed as having “foot drop” which prevents her from walking in a normal manner.
Brown sued the Hospital for negligence, alleging that the nurses it employed failed to
properly monitor the abductor pillow. Brown alleged that the failure to monitor allowed the strap
to “unreasonably constrict blood flow in her right leg,” thereby causing her injury.
STANDARD OF REVIEW
A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the
same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in
reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
We review the evidence in the light most favorable to the non-movant, disregarding all contrary
evidence and inferences. Id. at 751. A no-evidence point will be sustained when: (1) there is a
complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to
prove the vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the
opposite of a vital fact. Id. A no-evidence summary judgment is improperly granted if the
respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of
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material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion of fact. Id. More than a scintilla of evidence exists
when the evidence rises to a level that would enable reasonable and fair-minded people to differ in
their conclusions. Id.
DISCUSSION
In a medical malpractice case, the plaintiff must prove by competent testimony that the
defendant’s negligence proximately cause the plaintiff’s injury. Bryant v. Levy, 196 S.W.3d 166,
170 (Tex. App.—Amarillo 2006, pet. dism’d); Thomas v. Farris, 175 S.W.3d 896, 898-99 (Tex.
App.—Texarkana 2005, pet. denied). The plaintiff must establish a causal connection beyond the
point of mere conjecture or speculation; proof of mere possibilities cannot establish causation.
Lenger v. Physician’s General Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Bryant, 196 S.W.3d
at 170; Thomas, 175 S.W.3d at 899. A plaintiff, however, is neither required to establish causation
in terms of medical certainty nor is the plaintiff required to exclude every other reasonable
hypothesis. See Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 405 (Tex. 1993); First
Assembly of God, Inc. v. Texas Utilities Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001,
no pet.); Bryant, 196 S.W.3d at 170. The plaintiff is required to prove only that it is “more likely
than not” that the injury was caused by the negligence of one or more defendants. See Kramer, 858
S.W.2d at 405; Bryant, 196 S.W.3d at 170; Thomas, 175 S.W.3d at 899. Stated differently, “it is
sufficient to prove that the greater probability is that the defendant’s conduct, alone or in contribution
with others, was the cause of the harm.” First Assembly of God, Inc., 52 S.W.3d at 493.
More than one proximate cause, including more than one cause-in-fact, may exist. Morrell
v. Finke, 184 S.W.3d 257, 284 (Tex. App.—Fort Worth 2005, pet. denied). The ultimate standard
-3- 04-08-00414-CV
of proof is whether by a preponderance of the evidence, the negligent act or omission is shown to
be a substantial factor in bringing about an injury, and without which the harm would not have
occurred. Morrell, 184 S.W.3d at 284; Thomas, 175 S.W.3d at 899.
During his deposition, Dr. Pontius explained that the strap of the abductor pillow being too
tight can put pressure on the nerve, resulting in nerve palsy, and if the strap is too tight or tight for
too long, it can cause foot drop. Dr. Pontius further explained that an injury to Brown’s sciatic nerve
occurred “upstream from the knee” by the surgical site in the hip area, and a second injury occurred
distally around the knee because “there was more complete deficit in the function of the perineal
nerve as opposed to the tibial portion of the nerve. And if you expect the injury to be totally from
the sciatic nerve, I would have expected the tibial nerve also to be a little bit more dense or a little
bit more weak.” Dr. Pontius opined that the nerve suffered two separate occurrences of harm. Dr.
Pontius further opined “based on reasonable medical probability” that one of the causes of the
damage or harm to the nerve near the knee was “pressure from swelling and superincumbent pressure
from the strap causing some pressure on the nerve.” Dr. Pontius further testified:
Q. Dr. Pontius, at the end of the day, if I understand your testimony correctly, you can’t differentiate between the possible causes of Mrs. Brown’s foot drop; is that true? MR. APFFEL: Form. THE WITNESS: Correct. Q. (BY MR. WALLIS) And you can’t tell the jury within a reasonable medical probability what caused her foot drop, can you? MR. APFFEL: Form. THE WITNESS: Well, injury to a nerve; yes, I can do that. Q. (BY MR. WALLIS) But – but where that injury occurred, you can’t tell the jury within a reasonable medi- -- degree of medical probability, can you? MR. APFFEL: Form. THE WITNESS: Well, I think you can. You have two – But that’s my own opinion.
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This testimony is more than a scintilla of evidence sufficient to raise a genuine issue of material fact
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i i i i i i
MEMORANDUM OPINION
No. 04-08-00414-CV
Rosalyn BROWN, Appellant
v.
BAPTIST HEALTH SERVICES, INC. and/or Baptist Health Services, Inc. doing business as St. Luke’s Baptist Hospital, Appellee
From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2006-CI-09447 Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: April 29, 2009
REVERSED AND REMANDED
Rosalyn Brown appeals the trial court’s order granting the no-evidence summary judgment
filed by Baptist Health Services, Inc. and/or Baptist Health Services, Inc. doing business as St.
Luke’s Baptist Hospital. Brown sued the Hospital for negligence, and the Hospital moved for
summary judgment asserting that Brown could produce no-evidence with regard to the element of 04-08-00414-CV
proximate cause. We reverse the trial court’s judgment and remand the cause to the trial court for
further proceedings.
BACKGROUND
Brown underwent a total hip replacement operation performed by Dr. Uwe Pontius. The
morning after the operation, Brown was complaining of numbness in her leg. When Dr. Pontius
examined Brown, he discovered the strap of the abductor pillow, that was placed on Brown to
prevent post-surgical hip dislocation, was too tight around her knee. Brown was subsequently
diagnosed as having “foot drop” which prevents her from walking in a normal manner.
Brown sued the Hospital for negligence, alleging that the nurses it employed failed to
properly monitor the abductor pillow. Brown alleged that the failure to monitor allowed the strap
to “unreasonably constrict blood flow in her right leg,” thereby causing her injury.
STANDARD OF REVIEW
A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the
same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in
reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
We review the evidence in the light most favorable to the non-movant, disregarding all contrary
evidence and inferences. Id. at 751. A no-evidence point will be sustained when: (1) there is a
complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to
prove the vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the
opposite of a vital fact. Id. A no-evidence summary judgment is improperly granted if the
respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of
-2- 04-08-00414-CV
material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no
more than create a mere surmise or suspicion of fact. Id. More than a scintilla of evidence exists
when the evidence rises to a level that would enable reasonable and fair-minded people to differ in
their conclusions. Id.
DISCUSSION
In a medical malpractice case, the plaintiff must prove by competent testimony that the
defendant’s negligence proximately cause the plaintiff’s injury. Bryant v. Levy, 196 S.W.3d 166,
170 (Tex. App.—Amarillo 2006, pet. dism’d); Thomas v. Farris, 175 S.W.3d 896, 898-99 (Tex.
App.—Texarkana 2005, pet. denied). The plaintiff must establish a causal connection beyond the
point of mere conjecture or speculation; proof of mere possibilities cannot establish causation.
Lenger v. Physician’s General Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970); Bryant, 196 S.W.3d
at 170; Thomas, 175 S.W.3d at 899. A plaintiff, however, is neither required to establish causation
in terms of medical certainty nor is the plaintiff required to exclude every other reasonable
hypothesis. See Kramer v. Lewisville Memorial Hosp., 858 S.W.2d 397, 405 (Tex. 1993); First
Assembly of God, Inc. v. Texas Utilities Elec. Co., 52 S.W.3d 482, 493 (Tex. App.—Dallas 2001,
no pet.); Bryant, 196 S.W.3d at 170. The plaintiff is required to prove only that it is “more likely
than not” that the injury was caused by the negligence of one or more defendants. See Kramer, 858
S.W.2d at 405; Bryant, 196 S.W.3d at 170; Thomas, 175 S.W.3d at 899. Stated differently, “it is
sufficient to prove that the greater probability is that the defendant’s conduct, alone or in contribution
with others, was the cause of the harm.” First Assembly of God, Inc., 52 S.W.3d at 493.
More than one proximate cause, including more than one cause-in-fact, may exist. Morrell
v. Finke, 184 S.W.3d 257, 284 (Tex. App.—Fort Worth 2005, pet. denied). The ultimate standard
-3- 04-08-00414-CV
of proof is whether by a preponderance of the evidence, the negligent act or omission is shown to
be a substantial factor in bringing about an injury, and without which the harm would not have
occurred. Morrell, 184 S.W.3d at 284; Thomas, 175 S.W.3d at 899.
During his deposition, Dr. Pontius explained that the strap of the abductor pillow being too
tight can put pressure on the nerve, resulting in nerve palsy, and if the strap is too tight or tight for
too long, it can cause foot drop. Dr. Pontius further explained that an injury to Brown’s sciatic nerve
occurred “upstream from the knee” by the surgical site in the hip area, and a second injury occurred
distally around the knee because “there was more complete deficit in the function of the perineal
nerve as opposed to the tibial portion of the nerve. And if you expect the injury to be totally from
the sciatic nerve, I would have expected the tibial nerve also to be a little bit more dense or a little
bit more weak.” Dr. Pontius opined that the nerve suffered two separate occurrences of harm. Dr.
Pontius further opined “based on reasonable medical probability” that one of the causes of the
damage or harm to the nerve near the knee was “pressure from swelling and superincumbent pressure
from the strap causing some pressure on the nerve.” Dr. Pontius further testified:
Q. Dr. Pontius, at the end of the day, if I understand your testimony correctly, you can’t differentiate between the possible causes of Mrs. Brown’s foot drop; is that true? MR. APFFEL: Form. THE WITNESS: Correct. Q. (BY MR. WALLIS) And you can’t tell the jury within a reasonable medical probability what caused her foot drop, can you? MR. APFFEL: Form. THE WITNESS: Well, injury to a nerve; yes, I can do that. Q. (BY MR. WALLIS) But – but where that injury occurred, you can’t tell the jury within a reasonable medi- -- degree of medical probability, can you? MR. APFFEL: Form. THE WITNESS: Well, I think you can. You have two – But that’s my own opinion.
-4- 04-08-00414-CV
This testimony is more than a scintilla of evidence sufficient to raise a genuine issue of material fact
with regard to whether it is “more likely than not” that Brown’s foot drop was caused, in part, by the
abductor pillow strap being allowed to become too tight.1 Because there can be more than one cause-
in-fact, Brown was not required to exclude the injury to the sciatic nerve above the knee as a
concurrent cause of the condition. See Bryant, 196 S.W.3d at 170; Morrell, 184 S.W.3d at 284;
First Assembly of God, Inc., 52 S.W.3d at 493.
The Hospital relies heavily on two opinions in asserting that the summary judgment was
properly granted. See Sisters of St. Joseph of Texas, Inc. v. Cheek, 61 S.W.3d 32 (Tex.
App.—Amarillo 2001, pet. denied); Lette v. Baptist Health System, 82 S.W.3d 600 (Tex. App.—San
Antonio 2002, no pet.). In Cheek, the expert testified that the actions in question “caused or
contributed to” the plaintiff’s death. 61 S.W.3d at 36. The court noted, however, that the expert did
not define the nature of the causal relationship and the terms used did not quantify the degree to
which the defendant’s actions were related to the plaintiff’s death. Id. The expert never testified that
if the nurses had taken the actions in question, the plaintiff, in reasonable medical probability, would
have survived. Id. at 36-67. Similarly, in Lette, no expert was able to render an unequivocal opinion
that the administration of the drug in question caused the resulting injury. 82 S.W.3d at 602. In this
case, however, Dr. Pontius unequivocally testified that the strap being too tight injured Brown’s
nerve and was one of the causes of Brown’s foot drop.
1 … Because we do not rely on Dr. Pontius’s recorded statement or the affidavit of Dr. David W . Edelstein, we need not decide whether or not the trial court erred in granting the Hospital’s objections to that evidence.
-5- 04-08-00414-CV
CONCLUSION
Because Brown presented more than a scintilla of probative evidence to raise a genuine issue
of material fact with regard to proximate causation, the trial court erred in granting the no-evidence
summary judgment.
Rebecca Simmons, Justice
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