Opinion
No. 07-04-0058-CV.
March 21, 2006. Opinion on Rehearing June 22, 2006. Rehearing Overruled August 7, 2006.
Appeal from the 108th District Court, Potter County, Abe Lopez, J.
Joe L. Lovell, Tim D. Newsom, Lovell, Lovell, Newsom Isern, L.L.P., Amarillo, for appellants.
Barry D. Peterson, Peterson Farris Pruitt Parker, P.C., Thomas C. Riney, Kerri L. Stampes, Gwinn Roby L.L.P., Amarillo, Henri J. Dussault, Coby D. Smith, Brackett Ellis, Fort Worth, Jim Hund, Hund Harriger L.L.P., Lubbock, for appellees.
Before QUINN, C.J., REAVIS, J., and BOYD, S.J.
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon 2005).
OPINION
This is an appeal from a take-nothing summary judgment in favor of appellees Eric Nicholas Levy, M.D. (Levy), Amarillo Area Healthcare Specialists, L.L.P. (AAHS), and Northwest Texas Healthcare System (NWTHS). In pursuing the appeal, appellants Gregory Shawn Bryant and Linsey Kay Bryant, individually and as representatives of the Estate of Kennalee D'Lin Bryant, a deceased minor, present two issues for our decision. Those issues are whether 1) the trial court committed reversible error in granting the motions for summary judgment filed by appellees, and 2) whether reasonable minds could differ on the proximate cause of Kennalee's death. For reasons herein stated, we reverse the judgment of the trial court.
Factual History
Kennalee Bryant was born on December 28, 1999. On January 20, 2000, she was taken to her pediatrician, Dr. James Boger, because of congestion, a cough, a stuffy and runny nose, and dehydration. She was diagnosed as having an upper respiratory tract infection for which the doctor recommended fluids and over-the-counter medication. The infant's condition continued to worsen and on January 23, 2000, her mother, Linsey, was told by the pediatrician to take the child to Northwest Texas Hospital (NWTH). At the time, Kennalee had difficulty breathing, abnormal lung sounds including wheezes and rattles, retractions of the lungs, respirations of 80 per minute and an oxygen saturation of 80%. She was diagnosed with respiratory syncytial virus (RSV).
About 6:00 p.m. on January 23, the child was admitted to the pediatric ward of the hospital and given intravenous fluids and breathing treatments. However, her condition continued to deteriorate. Her retractions on breathing became severe, she began running a temperature, became pale, refused to take fluids and, although she was on oxygen and breathing treatments, her oxygen saturation remained low. At approximately 8:51 p.m., Dr. Rolf Habersang, a pediatric critical care doctor and a member of the AAHCS, was consulted. Dr. Habersang examined the child at 9:10 p.m. and assessed her as having decreased sensation, poor responsiveness, severe retractions of the lower chest wall, and very decreased air exchange throughout her lungs.
Dr. Habersang transferred Kennalee to the pediatric intensive care unit and gave orders that the breathing treatments be continued and other medications be administered. Because the child's condition continued to worsen, at approximately 8:00 a.m. on January 24, Dr. Habersang decided to intubate her, placed her on mechanical ventilation, and placed a feeding tube in her. At approximately 10:30 a.m., appellee Levy assumed Kennalee's care.
At 12:50 p.m., as a result of a capillary blood gas test and increased agitation, Levy ordered additional medications. At 4:20 p.m., a blood gas was performed which showed a carbon monoxide level of 78.6. The normal range for carbon monoxide is 35 to 45. As a result of the increase, Levy ordered a change on the ventilator from 20 to 24 breaths per minute and ordered another blood gas to be drawn at 6:00 p.m. The 6:00 p.m. blood gas showed some improvement with the carbon monoxide level dropping to 46.5.
At 5:00 p.m., Shannon Brewster, a respiratory therapist employed by NWTHS, changed the ventilator, setting the tidal volume from 60 ccs to 65 ccs. There is no record of a physician's order for the change. At 5:10 p.m., Brewster also noted that Kennalee had tight wheezing and increasing carbon monoxide after receiving chest therapy. Kennalee's vital signs were taken at 6:00 p.m., although there was no examination. A respiratory therapist came into Kennalee's room around 7:10 p.m. and began to assess her. At 7:20 p.m., the oxygen saturation level dropped to 50%, her heart rate dropped into the 70s, her blood pressure dropped to 64/28 and she began to turn blue. Cardiopulmonary resuscitation was begun by the nurse and respiratory therapists. Levy was not at the hospital but was called, gave resuscitation orders to the nursing staff while driving to the hospital, and arrived some 12 minutes into the code.
After the resuscitation efforts, a pulse returned. Chest x-rays suggested the presence of air outside of the lungs and in the abdominal cavity, which caused Levy to believe that Kennalee suffered from a pneumothorax in both lungs through which large amounts of air escaped from her lungs into her chest and abdominal cavities. Continued resuscitation efforts were unsuccessful and the child expired at 9:10 p.m. An autopsy was performed which determined that the cause of death was hyaline membrane disease (diffuse alveolar damage), interstitial pneumonia, and acute bronchopneumonia.
Standard of Review
Levy and AAHS filed traditional and no-evidence motions for summary judgment under Texas Rule of Civil Procedure 166a(b) and (i), and NWTHS filed a no-evidence summary judgment motion pursuant to Texas Rule of Civil Procedure 166a(i). In Kimber v. Sideris, 8 S.W.3d 672, 674-676 (Tex.App.-Amarillo 1999, no pet.), this court had occasion to iterate in some detail the standards of review to be applied in cases of this nature in which such motions have been filed, and we refer to that case for a detailed description of those standards.
This appeal presents the question of whether there was more than a scintilla of evidence that Kennalee's death was proximately caused by the negligence of appellees. There is more than a scintilla of evidence when it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Pesina v. Hudson, 132 S.W.3d 133, 136 (Tex.App.-Amarillo 2004, no pet.). Less than a scintilla is present when the evidence does no more than create a surmise or suspicion. Id.
Because appellants assert claims of medical negligence, raising a genuine issue of material fact on the issue of proximate cause requires proof from a competent expert witness. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982); Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965). Proximate cause consists of two distinct elements, i.e., cause in fact and foreseeability. Arlington Mem'l Hosp. Found. v. Baird, 991 S.W.2d 918, 922 (Tex.App.-Fort Worth 1999, pet. denied). Proof of the "cause in fact" element requires a showing that the defendant's conduct was a substantial factor in bringing about the alleged injury and without which the alleged injury would not have occurred. Sisters of St. Joseph of Texas, Inc. v. Cheek, 61 S.W.3d 32, 35 (Tex.App.-Amarillo 2001, pet. denied). Proximate cause must be based upon reasonable medical probability. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). Opinion evidence relied upon as proof must be based upon more than possibilities, speculation, and surmise. Archer v. Warren, 118 S.W.3d 779, 782 (Tex.App.-Amarillo 2003, no pet.). In evaluating opinion evidence, we look to the basis of the expert's opinion and not the opinion alone. A claim may not stand or fall upon the mere ipse dixit of a credentialed witness. Whether expert testimony on causal connection rests upon reasonable medical probability must be determined by the substance and context of the testimony rather than semantics or use of a particular term or phrase.
The term "ipse dixit" means "something asserted but not proved" and is literally translated "he himself said it." See Marvelli v. Alston, 100 S.W.3d 460, 478 n. 6 (Tex.App.-Fort Worth 2003, pet. denied).
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. Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex.App.-Fort Worth 2003, pet. denied). The quantum of proof required is simply "that it is `more likely than not' that the ultimate harm or condition resulted from such negligence." See Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397, 400 (Tex. 1993). However, if an expert's opinion is based upon assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995).
With regard to Levy and AAHS, appellants contend that Levy should have performed a chest x-ray at 4:20 p.m. to determine whether the results of a bad blood test were the result of a developing pneumothorax because it is foreseeable to an intensivist that failing to order a chest x-ray will result in the failure to diagnose a pneumothorax. They additionally argue that had Levy ordered the x-ray, he would have seen the extra air and performed evacuation procedures which would have prevented the cardiac arrest that caused the child's death.
With regard to NWTHS, appellants note that the staff failed to report the clinical changes occurring in the child to Dr. Levy or some other doctor. It is foreseeable to the staff, they contend, that a failure to report patient deterioration will result in the patient not receiving the care the patient needs, and had the staff properly reported Kennalee's continued deterioration to Levy or any other physician, then steps would have been taken to diagnose the pneumothorax and drain the air outside the lungs, which would have prevented the cardiac arrest.
Appellants recognize that under the facts in this case, to raise an issue of proximate cause, they must have shown that the chest x-ray, if performed, would in reasonable medical probability have resulted in the institution of medical treatment which would have prevented Kennalee's death. They contend that they have done so by the testimony of their expert Dr. Tilelli. In particular, they refer to this portion of his deposition testimony:
Q: Had the pneumothorax been corrected following the 4:00 p.m. capillary blood gas after a diagnosis by a chest x-ray, would Kennalee Bryant have gone into cardiac arrest at 7:20?
* * *
A: As-as-as both counsels for the defense have outlined, there are still mortal risks to this child who is seriously ill from — from bronchiolitis. However, in the experience I think of the majority of clinicians who take care of children with bronchiolitis, that survival is the rule even in the face of a pneumothorax when they are promptly drained.
It is certain that an undrained pneumothorax will cause — and ultimately under these circumstances — will cause a cardiac arrest. And the drainage in the majority. And the vast majority of cases is associated with survival of these children.
And so it's my opinion that had a pneumothorax been diagnosed at 4:20, and had it been appropriately evacuated, that the arrest would not have occurred.
They also cite another portion of Dr. Tilelli's testimony in which he opines:
Q: Is it your opinion that the pneumothorax is what caused Kennalee Bryant to have a cardiac arrest?
A: Yes.
Q: Is it the cardiac arrest that ultimately took Kennalee Bryant's life?
A: Yes.
The doctor's testimony, then, was that in his opinion, Kennalee had an undiagnosed and untreated pneumothorax that resulted in the cardiac arrest which caused her death. Dr. Tilelli also averred that if the pneumothorax had been timely treated, Kennalee would have continued to have a normal life span. Additionally, the doctor stated that if the caregivers notified Levy of Kennalee's continued deterioration and that "the patient is tight and wheezy and still has elevated and tidal CO2's," he would again have had the opportunity to order the chest x-ray that in Dr. Tilelli's opinion would have made the difference. He further agreed that a caregiver knows that if those types of deteriorative changes are not reported to a physician, the physician is not going to act. There is also evidence that no nursing notes were made from 11:45 a.m. until the code call at 7:20 p.m.
In summary, under the evidence in the summary judgment record, viewed in the light by which we must view that evidence, the trial court erred in granting its summary judgment. Accordingly, we must, and do hereby, reverse the judgment of the trial court and remand the cause to the trial court.
ON MOTIONS FOR REHEARING
Pending before the court are two motions for rehearing. The first is filed by Eric Nicholas Levy, M.D., and Amarillo Area Healthcare Specialists, L.L.P. (AAHS). The second is that of Northwest Texas Healthcare System, Inc. (Northwest). For the reasons which follow, I would grant both and affirm the trial court's summary judgment for the reasons which follow.
Levy/AAHS.
The claims of negligence asserted by Gregory Shawn Bryant and Linsey Kay Bryant, individually and as the representatives of the estate of Kennalee D'Lin Bryant (Bryants), are founded upon two propositions. The first involves the purported duty of Dr. Levy to insert chest tubes into the infant at 7:45 p.m. on the day she died. The second concerns the duty to perform a chest x-ray on the infant approximately three and one half hours earlier ( i.e. 4:20 p.m.) to determine if she suffered from a pneumothorax. The breach of these duties purportedly caused the death of the child.
Regarding the former, the Bryants concede their expert testified that the insertion of the chest tubes at the time alleged would not have prevented the infant's death. Additionally, they cite to no evidence of record suggesting in any way that the infant would have survived had the tubes been inserted. Thus, I am unable to find a material issue of fact exists concerning whether the particular omission proximately caused the child's death.
As for the alleged failure to take a chest x-ray at 4:20 p.m., its importance is dependent upon the existence of a pneumothorax at that time. In other words, the Bryants averred that had the x-ray been taken then, Levy would have discovered a pneumothorax, treated the infant for same, and prevented her death. So, as can be seen, all is dependent upon proof that the infant was suffering from a pneumothorax at 4:20 p.m. If she was not, then the failure to order the x-ray and discover the pneumothorax could not be a substantial factor in the death for there was no pneumothorax to discover.
More importantly, I found no competent evidence of record suggesting it was more likely than not that the child suffered from a pneumothorax at that time. Indeed, comments were made by the Bryant's expert suggesting the rupture could have occurred later. He testified that 1) it was "possible" the pneumothorax occurred sometime after 4:20 p.m., 2) the possibility was one that he could not "exclude," and 3) there was no way of knowing (without a chest x-ray) whether the changes in Kennalee's situation at 4:20 p.m. were caused by a pneumothorax or another malady she experienced.
Furthermore, while the expert did utter that "the worsening mechanics [experienced by the child] were more likely than not caused by extra ventilatory air [ i.e. a pneumothorax]," he failed to explain the basis for his conclusion. Instead, he simply said that "knowing that the child had a pneumothorax at 7:20[p.m], and that at that time it was under tension and it caused the child to arrest" he was "lead . . . to ask what is more likely at 4:20 [p.m.], that the child had worsening disease, or had a pneumothorax that was becoming symptomatic. . . ." Then he concluded by saying ". . . I think that the arrest secondary to the pneumothorax indicates that worsening mechanics were more likely than not caused by extra ventilatory air." Why the presence of a pneumothorax under tension at 7:20 p.m. suggests a pneumothorax also existed three hours earlier goes unexplained, and there lies the problem. Without that explanation I am, and the trial court was, left to guess at the link. That very same void also renders the expert's opinion nothing more than ipse dixit. And, an expert's ipse dixit is not competent evidence sufficient to create an issue of fact. See Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (stating that "[a]n expert's simple ipse dixit is insufficient to establish a matter; rather, the expert must explain the basis of his statements to link his conclusions to the facts"); Marvelli v. Alston, 100 S.W.3d 460, 478 (Tex.App.-Fort Worth 2003, pet. denied) (stating the same).
Ipse dixit is a label appended to matter that one asserted but failed to proved. Marvelli v. Alston, 100 S.W.3d 460, 478 n. 6 (Tex.App.-Fort Worth 2003, pet. denied), quoting BLACK'S LAW DICTIONARY 833 (7th ed. 1999).
In view of 1) the expert's testimony that it was possible the pneumothorax occurred after 4:20 p.m. and 2) the absence of explanation underlying his opinion that it had occurred by 4:20 p.m., I must conclude that no competent evidence of a pneumothorax at 4:20 p.m. appears of record. Without that evidence, I must also conclude that the Bryants did not sufficiently link their child's death to Levy's purported failure to have an x-ray done at that time.
The motion for rehearing should be granted, and the trial court's judgment should be affirmed.
Northwest
Of the several grounds urged by Northwest, I address only that involving the topic of causation. Northwest argues that the Bryants failed to present evidence sufficient to raise a question of fact regarding whether the conduct of Northwest's employees proximately caused Kennalee's death. I agree.
The Bryants attempted to establish the element in question through the testimony of their expert. The latter offered statistics about the general survival rate of children who contracted RSV and bronchiolitis, two ailments suffered by Kennalee. Yet, it cannot be ignored that the infant also suffered from a pneumothorax. Because she did, any statistics involving the mortality rate of children who merely suffered from RSV and bronchiolitis fall short of establishing that Kennalee would have survived but for the purported negligence of Northwest's staff. See Botello v. McWhorter, No.-07-00-0218-CV, 2001 WL 25712, 2001 Tex.App. LEXIS 177 at *10 (Tex.App.-Amarillo January 10, 2001, pet. denied) (noting that before statistics are probative on the issue of causation, their proponent must illustrate that the circumstances or conditions of the person involved in the instant suit were similar to those of people from whom the statistics were garnered). In other words, there must be a comparison of apples to apples, not apples to oranges, before the findings are probative.
The expert conceded that Kennalee's RSV and bronchiolitis were "very severe" and continued to worsen after the infant entered the hospital. Whether the maladies of those comprising the test group from which the statistics were taken were equally severe goes unmentioned. They may or may not have been.
Regarding the evidence that came closer to comparing apples to apples, I too find it flawed. The evidence about which I speak is that of the expert wherein he said Kennalee would not have had a cardiac arrest "had a pneumothorax been diagnosed at 4:20 [p.m.], and had it been appropriately evacuated." While it suggests that the infant may have survived, his opinion is nonetheless conditioned upon the discovery of a pneumothorax at 4:20 p.m. And, as discussed earlier, there is no competent evidence that Kennalee had such a condition at that time. Accordingly, I would also grant Northwest's motion for rehearing and affirm the summary judgment.
I concur with the opinion of Chief Justice Quinn that the motion for rehearing of Eric Nicholas Levy, M.D., and Amarillo Area Healthcare Specialists, L.L.P. should be granted and the judgment should be affirmed as to Levy and Amarillo Healthcare Specialists, L.L.P.; otherwise, as to Northwest Texas Healthcare System, Inc., I would overrule its motion for rehearing and reverse that portion of the judgment of the trial court.
For the reasons expressed in this court's original opinion, I remain convinced that all the motions for rehearing should be denied. To the majority's decision to grant the motion for rehearing filed by Eric Nicholas Levy, M.D., and the Amarillo Area Healthcare Specialists, L.L.P. (AAHS), I respectfully dissent.