DIANA CRUZ, Individually and as Next Friend of SERGIO CRUZ, JR., a Minor, Appellant, v. PASO DEL NORTE HEALTH FOUNDATION f/k/a and d/b/a PROVIDENCE MEMORIAL HOSPITAL, Appellee.
No. 08-99-00002-CV
COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO
44 S.W.3d 622; 2001 Tex. App. LEXIS 2001
March 29, 2001, Decided
OPINION:
[*624]
This is the tragic story surrounding the birth of Sergio Cruz, Jr. (Sergio). Diana Cruz, individually and as next friend (Cruz), filed a medical malpractice suit against Paso Del Norte Health Foundation f/k/a and d/b/a Providence Memorial Hospital (Providence) for injuries to her son allegedly sustained during labor. Following a lengthy trial, a jury found that the alleged negligence of two labor and delivery nurses was not a proximate cause of Sergio's severe brain injury and the trial court rendered a take-nothing judgment in favor of Providence. Cruz brings three [*625] issues on appeal complaining that the jury's adverse findings are against the great weight and preponderance of the evidence. We affirm.
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The Issue on Appeal
By three issues presented for collective review, Cruz contends that the jury's adverse finding on the issue of negligence and causation is against the great weight and preponderance of the evidence. n6 She [*629] argues that Providence's experts misled the jury and offered incompetent and inconsistent theories about timing of the injury and causation which were predicated on assumed facts and which were contrary to actual facts proved. She calls the defensive alternative theories "internally inconsistent and outwardly contradictory." Providence maintains that Cruz's attack on defensive expert witnesses is factually inaccurate and legally impermissible. The litigants agree that in order for this Court to reverse the judgment, the jury's verdict on both negligence and causation must be so contrary to the great weight and preponderance of the evidence that it is manifestly unjust.
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ELEMENTS OF MEDICAL MALPRACTICE
In a medical malpractice case, the plaintiff is required to show evidence of a reasonable medical probability that the injury was proximately caused by the negligence of the defendant. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). The Supreme Court has interpreted this requirement to mean that the ultimate standard of proof [**16] 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." Park Place Hosp., 909 S.W.2d at 511, quoting Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 400 (Tex. 1993). There are four elements to be proved: (1) a duty by the physician/nurse/hospital [*630] to act according to applicable standards of care; (2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury. n7 Denton Regional Medical Center v. LaCroix, 947 S.W.2d 941, 950 (Tex.App.--Fort Worth 1997, writ denied). To establish proximate cause, a plaintiff must prove: (1) foreseeability, i.e., that the defendant should have anticipated the danger that resulted from her negligence; and (2) cause-in-fact, i.e., that the defendant's negligence was a substantial factor in bringing about the injury and without which no harm would have occurred. Bradley v. Rogers, 879 S.W.2d 947, 953 (Tex.App.--Houston [14th Dist.] 1994, writ denied); [**17] Campos v. Ysleta General Hospital, Inc., 836 S.W.2d 791, 794 (Tex.App.--El Paso 1992, writ denied). With regard to cause-in-fact, the plaintiff must establish a causal connection based upon "reasonable medical probability," not mere conjecture, speculation, or possibility. Bradley, 879 S.W.2d at 953-54; see Duff, 751 S.W.2d at 176; Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970). However, a plaintiff need not establish causation in terms of medical certainty, nor is she required to exclude every other reasonable hypothesis; reasonable inferences may be drawn from the evidence. Bradley, 879 S.W.2d at 954. The plaintiff satisfies this causal link requirement when she presents proof that establishes a direct causal connection between the damages awarded, the defendant's actions, and the injury suffered. Texarkana Memorial Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997). The trier of fact may decide the issue of proximate causation in medical malpractice cases when: (1) general experience and common sense will enable layman fairly to determine the causal [**18] relationship between the event and the condition; (2) scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) a probable causal relationship is shown by expert testimony. Bradley, 879 S.W.2d at 954, citing Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex. 1969).
n7 Only the second and fourth elements are contested in this appeal.
THE ROLE OF EXPERT TESTIMONY IN ESTABLISHING DEFENSIVE THEORIES
We must first address Providence's arguments that Cruz's attack on its expert testimony is legally impermissible. Citing Burroughs Wellcome Company v. Crye, 907 S.W.2d 497, 499 (Tex. 1995), n8 Cruz contends that the opinions of several of Providence's experts constitute "no evidence" because they are premised on assumed facts and are factually unsupported. Cruz also argues, citing Schaefer v. Texas Emp. Ins. Ass'n, 612 S.W.2d 199, 205 (Tex. 1980) [**19] [*631] and Weiss v. Mechanical Associated Services, Inc., 989 S.W.2d 120, 126 (Tex.App.--San Antonio 1999, pet. denied), that certain expert opinions constitute "no evidence" because they were not based upon "reasonable medical probability." In other words, the crux of this appeal is whether competent evidence of probative force supports the jury's failure to find a breach of duty and a causal connection between the breach and the injury.
n8 Crye involved a plaintiff's verdict which was ultimately reversed. The Court noted:
When an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment.
...
However, to constitute evidence of causation, an expert opinion must rest in reasonable medical probability. ... This rule applies whether the opinion is expressed in testimony or in a medical record, as the need to avoid opinions based on speculation and conjecture is identical in both situations .... Reasonable probability is determined by the substance and context of the opinion, and does not turn on semantics or on the use of a particular term or phrase.
Crye, 907 S.W.2d at 499-500 (citations deleted).
[**20]
Providence first replies that in the wake of Maritime Overseas Corp. v. Ellis, Cruz is not permitted to challenge the reliability of expert testimony under the guise of a sufficiency argument because she did not raise these objections before trial nor when the evidence was offered. Ellis involved a plaintiff's verdict which was ultimately affirmed. Maritime did not contest the damages awarded for delayed and permanent neurotoxic damage on the ground that Ellis's expert testimony was speculative and not based on reasonable medical probability. Ellis, 971 S.W.2d at 408. It did not complain about the admission of any of the expert testimony. Ellis, 971 S.W.2d at 408. Instead, it contended that if the court of appeals had applied a proper scientific methodology to the expert testimony, the testimony would be legally insufficient as to causation. Id. "Thus, Maritme concludes, by way of its complaints about the court of appeals' factual sufficiency review, that there is no evidence of some of Ellis's actual damages." Id. The Court disagreed:
Simply put, Maritime did not make any objection to the reliability of Ellis's experts [**21] before trial or when Ellis offered the evidence. Maritime cannot complain for the first time after the verdict that the testimony from Ellis's five experts does not support the judgment.
Ellis, 971 S.W.2d at 411.
Justice Hecht dissented, commenting that bare conclusions are incompetent and the fact that they are admitted without objection adds nothing to their probative force. Ellis, 971 S.W.2d at 418 (Hecht, J., dissenting) citing Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (1939). Similarly, "it is well settled that the naked and unsupported opinion or conclusion of a witness does not constitute evidence of probative force and will not support a jury finding even when admitted without objection." Ellis, 971 S.W.2d at 418 (Hecht, J., dissenting) citing Dallas Railway & Terminal Company v. Gossett, 156 Tex. 252, 294 S.W.2d 377 (1956). Further, Justice Hecht relied upon Schaefer v. Texas Employers' Insurance Association, 612 S.W.2d 199 (Tex. 1980) in which the Court reviewed expert testimony concerning causation:
We have reviewed the substance of Dr. Anderson's testimony in its entirety and [**22] we find that it does no more than suggest a possibility as to how or when Schaefer was exposed to or contracted the disease. We hold that his opinion is not based upon reasonable medical probability but relies on mere possibility, speculation, and surmise.
Schaefer, 612 S.W.2d at 204. Finally, he turned to Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), in which the Court remarked that "'an expert's bare opinion will not suffice' to provide evidence of causation of an injury; 'the substance of the testimony must be considered.'" 971 S.W.2d at 420.
The testimony of an expert is generally opinion testimony. Whether it rises to the level of evidence is determined under our rules of evidence, including Rule 702, which requires courts to determine if the opinion testimony will assist the jury in deciding a fact issue.
Id. Many of Justice Hecht's comments form the predicate of Cruz's arguments here. [*632]
Secondarily, Providence argues that the cases cited by Cruz are distinguishable because all of them involved a challenge to allegedly deficient expert testimony tendered by the party who had the burden [**23] of proof at trial. Providence reasons that because a defendant does not have the burden to prove the absence of negligence or causation by a preponderance of the evidence, a plaintiff may not attack the reliability and competency of the defendant's expert testimony in the context of a factual sufficiency challenge.
We readily agree that it is the burden of the plaintiff to establish the standard of care in a medical malpractice case. The failure of a defendant's expert to enunciate the standard of care does not require exclusion of the testimony. "Such a failure may ultimately go to the weight or value of the expert's testimony to the fact finder, but not to its admissibility, or to the qualifications of the witness to testify." Warner v. Hurt, 834 S.W.2d 404, 407 (Tex.App.--Houston [14th Dist.] 1992, no writ). As to causation, if there are other plausible causes of injury that could be negated, the plaintiff must offer evidence excluding those causes within reasonable certainty. Weiss v. Mechanical Associated Services, Inc., 989 S.W.2d 120 (Tex.App.--San Antonio 1999, pet. denied), citing Havner, 953 S.W.2d at 730. Through her [**24] experts, Cruz attempted to negate each of the defensive theories of causation. n9 Must these defensive alternative theories be established within reasonable medical probability? The rule of "reasonable medical probability" relates to the showing that must be made to support an ultimate finding of fact and not to the standard by which the medical expert must testify. Id.; Blankenship v. Mirick, 984 S.W.2d 771, 775 (Tex.App.--Waco 1999, pet. denied).
n9 The record reveals the following comment by Providence's trial counsel at the hearing on the motion for new trial: "From the direct comments of the six to eight jurors that we talked to after the case was over, it was clear that they thought the doctor, not the hospital, not the nurses, was responsible for this event, if blame was to be assessed, and they determined the case not on negligence: They determined the case based upon proximate cause. ... Originally the hospital, the nurse and the doctor were all sued. Then the -- Then the plaintiff dismissed the nurses and just before trial dismissed the doctor, during the trial, tried the nurses, not the hospital."
[**25]
But the question is not yet fully resolved. We do not perceive Cruz to be challenging the reliability of the defensive expert testimony. Expert medical testimony concerning the possible causes of the condition in question, such as that offered by Providence, is admissible to assist the trier of fact in evaluating other evidence in the case. Lenger, 455 S.W.2d at 707. In Harris v. Belue, 974 S.W.2d 386 (Tex.App.--Tyler 1998, pet. denied), the Court addressed the defensive theory that there were other possible explanations of how an errant staple became attached to the plaintiff's bowel and that the plaintiff's expert's conclusion was only one of several equally probable explanations for the plaintiff's injury. The Court rejected that argument:
However, there was no testimony supporting these alternate theories. ... Without factual support in the record justifying the application of these theories, they rise to little more than conjecture and cannot be explanations which are equally probable in the face of the factual evidence supporting [the expert's] conclusions.
Id. at 394. While the issue before the Court in Harris [**26] was not one of factual sufficiency but legal sufficiency--whether an instructed verdict for the doctor was appropriate--we believe the concept is [*633] equally applicable here. We must review the record to determine whether the jury's failure to find was against the great weight and preponderance of the evidence. In so doing, we must determine whether there is factual support in the record justifying the application of the defensive theories. We turn now to a detailed review of the evidence as it pertains to breach and causation.
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WAS [**59] THE JURY'S FAILURE TO FIND AGAINST
THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE?
Cruz's arguments focus on the language in Maritime Overseas Corporation v. Ellis that:
[*645] Bare conclusions and assertions unsupported by facts of record, expert opinions based on facts merely assumed and not proved, or facts different from those proved, and scientific testimony without any reliable basis, even if admitted without objection, are no evidence to support a finding of fact.
971 S.W.2d at 421. In this instance, she applies the holding to a failure to find. As to negligence, she contends that Dr. Harlass' testimony that the fetal monitoring strip was reassuring was based on his opinion that the strip showed short-term variability throughout. This conclusion was predicated upon the ability of an external fetal monitor to read short-term variability whereas other experts, including Dr. Robertson, opined that an external monitor is incapable of reading short-term variability. Yet Dr. Robertson also testified that nothing on the fetal monitor strip between the time of admission at 2:58 a.m. and the time that Dr. Tomasino arrived at the hospital at 4:55 a.m. presented [**60] a picture of a patient who was in an emergent situation. In his view, based upon reasonable medical probability, the nurses' conduct had not breached the standard of care. Cruz complains that Dr. Robertson admitted he had not read the hospital protocol and that as a result, he could not testify concerning the applicable standard of care. Because Cruz lodged no such objection at trial, the credibility of his testimony during rigorous direct and cross-examination was for the jury to determine. Accordingly, we must incorporate his testimony into our sufficiency analysis. We also acknowledge that there was abundant conflicting causation evidence. Even disregarding the seemingly more extreme defensive theories of infection, intrauterine growth retardation, post-birth seizures, emboli, and chronic hypoxia, we are left with a recurrent theme of HIE. The critical inquiry is when did the injury occur? Cruz emphasizes the testimony demonstrating that the injury occurred while Cruz was in labor at the hospital and under the care of Nurses Graham and Avila. Yet Cruz's own experts had varying opinions on the timing:
. between half an hour and an hour before birth (Dr. John R. Seals, pediatric [**61] neurologist);
. forty-seven minutes before birth (Dr. Donald J. Coney, obstetrician-gynecologist);
. between one hour and an hour and a half before birth (Dr. Kenneth F. Swaiman, pediatric neurologist);
. between one and three hours before birth (Dr. Enid Gilbert-Barness, pediatric pathologist); or
. between six hours before birth and six hours after birth (Dr. Barry Pressman, diagnostic radiologist).
Dr. Pressman's twelve-hour window of injury is the broadest estimate by Cruz's experts.
Likewise, Providence's experts also differed in their opinions of when the injury might have occurred, ranging between three hours and several days before birth to twelve hours after birth. Providence argues that if the jury chose to believe those experts who stated that the injury preceded Cruz's arrival at Providence or those experts who held the opinion that the injury occurred after Sergio's birth, then the jury's failure to find on the issue of causation would not be against the great weight and preponderance of the evidence. Providence attempts to pinpoint the exact time when the injury occurred, and then argue that if the jury believed it happened outside the window when the two nurses [**62] were responsible for Cruz's care, then the evidence is factually sufficient on the issue of proximate cause. This analysis ignores [*646] the fact that many experts testified about the process involved and then tried to pinpoint when the injury became irreversible. The process may have been ongoing during labor and became irreversible later at a time when the doctor had primary care of Cruz.
Providence also suggests that even assuming for the sake of argument that Cruz's experts were correct in their criticisms of Graham and Avila and in their opinions about the timing of Sergio's injuries, Cruz's argument on appeal must still fail because she failed to establish a causal connection between the conduct of the nurses and the injuries to Sergio. Cruz counters that Dr. Coney testified that the nurses' failure to get Dr. Tomasino into the hospital to perform "a timely indicated cesarean section, allowed the progression of the hypoxia to Sergio's brain to the point that irreversible brain damage occurred, so it did cause what happened to Sergio." Providence further posits that the jury could have disbelieved Dr. Coney because he based his opinion on assumed facts that proved to be inaccurate, [**63] namely, that Dr. Tomasino did not examine the fetal monitoring strip when he arrived at the hospital. Additionally, Dr. Harlass and Dr. Tomasino both contradicted Dr. Coney's opinion on causation.
Medical malpractice cases often present "a battle of the experts." In Magee v. Ulery, 993 S.W.2d 332 (Tex.App.--Houston [14th Dist.] 1999, no pet.), the Court affirmed the jury's failure to find negligence. The plaintiff's expert claimed the defendant was negligent; the defense expert said he was not. "Dr. Lambert testified that the diagnosis was 'erroneous' but he also testified that Dr. Goldberg was not negligent. The jury could have believed Dr. Lambert instead of Dr. George." Magee, 993 S.W.2d at 336.
Because the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the jury's simply because we may disagree with the jury's findings.
Id. Justice Wittig in his concurring opinion noted the defensive strategy: "Clearly the defense of this malpractice case involved the time worn strategy of pointing the finger away from the named defendant toward a non-party, here [**64] Dr. Conte (aka the empty chair defense)." Magee, 993 S.W.2d at 339. Dueling experts were also at the center of Warner v. Hurt, 834 S.W.2d 404 (Tex.App.--Houston [14th Dist.] 1992, no writ).
Even if we as a reviewing court might view the circumstances of this tragic case contrary to the way the jury did, we cannot become a thirteenth juror and substitute our judgment for theirs. In a battle of competing evidence, it is the sole obligation of the jury to determine the credibility of the witnesses and to weigh their testimony. It is the obligation of the respective advocates to persuade them in their decision. And it is our obligation to see that the process was fair and carried out according to the rules. We cannot under any circumstances re-try the case.
Id. at 409.
More factually analogous is Kirkpatrick v. Memorial Hosp. of Garland, 862 S.W.2d 762 (Tex.App.--Dallas 1993, writ denied). There, the plaintiffs' son, born at the defendant hospital, was afflicted with cerebral palsy. They contended that an hypoxic ischemic insult to the brain occurred during the active labor or delivery as a result of negligently rendered medical [**65] services. The hospital's theory was that the child's cerebral palsy did not result from any negligent >THE of the hospital during delivery but existed long before Mrs. Kirkpatrick went into active labor. In other [*647] words, the hospital contended that the child's neurological deficits resulted from a congenital brain malformation unrelated to the medical services provided. The plaintiffs settled their claim against the obstetrician and dismissed their claims against the other physician and the nurse. The hospital was the sole remaining defendant. During trial, the plaintiffs learned that the hospital had failed to disclose the name of a respiratory therapist who was in the delivery room at the time of the child's birth. As a result, the trial court struck the hospital's pleadings and entered a default judgment against the hospital on the liability issue. The jury then answered "none" to the damage questions. The hospital's position was that the jury's negative answer to the damage questions meant that the Kirkpatricks did not convince the jury that the hospital's negligent medical services during labor and delivery caused the child's cerebral palsy. The appellate court affirmed.
It is [**66] particularly within the jury's province to weigh opinion evidence and the judgment of experts. Pilkington v. Kornell, 822 S.W.2d 223, 230 (Tex.App.--Dallas 1991, writ denied). The jury decides which expert witness to credit. Pilkington, 822 S.W.2d at 230.
...
In considering great weight points complaining of a jury's failure to find a fact, we must be mindful that a preponderance of the evidence did not convince the jury. We may not reverse merely because we conclude that the evidence preponderates toward an affirmative answer.
Kirkpatrick, 862 S.W.2d at 772.
CONCLUSION
Despite our recognition as parents of the pain of a grieving mother, we are constrained to respect the parameters imposed upon an intermediate appellate court. While we can certainly conceive that Sergio's devastating injuries may be the result of someone's negligence, the jury's failure to find that any negligence of the nurses was a proximate cause of his injuries is not against the great weight and preponderance of the evidence. Issue Nos. One, Two, and Three are overruled. Having overruled all issues, we affirm the judgment of the trial [**67] court.
March 29, 2001
ANN CRAWFORD McCLURE, Justice
Before Panel No. 4
Barajas, C.J., Larsen, and McClure, JJ.