Opinion
EP-02-CV-0412-FM.
August 1, 2005.
ORDER
On this day, the Court considered "Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" [Rec. No. 77], "Plaintiff's Fifth Response to Defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment or to Exclude Plaintiff's Expert" [Rec. No. 79], and "Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment" [Rec. No. 81] filed in the above-captioned cause. After careful consideration of the motion, response, summary judgment evidence, and applicable law, the Court is of the opinion that "Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" [Rec. No. 77] should be GRANTED for the reasons that follow:
I. FACTUAL AND PROCEDURAL BACKGROUND
"Plaintiff's Original Complaint" [Rec. No. 1] was filed on September 3, 2002. On September 12, 2003, this cause was reassigned from the docket of Judge David Briones to this Court. [Rec. No. 14]. The complaint alleges medical malpractice by the Defendant United States for failing to preserve, maintain, and transfer a bone flap taken from the skull of minor Jacob Telles during treatment at William Beaumont Army Medical Center (WBAMC) in El Paso, Texas. The case was set for trial on April 11, 2005 by order dated August 10, 2004. [Rec. No. 57]. The case had previously been scheduled for trial on October 4, 2004, May 17, 2004, and February 23, 2004. [Rec. Nos. 8, 16, 45]. On March 24, 2005, a mere eighteen days before the scheduled trial date, Plaintiff's counsel filed a motion to disqualify the undersigned judge. In response to the motion, this Court stayed the cause on March 26, 2005. This case was then set for trial on September 26, 2005 by order dated June 17, 2005. [Rec. No. 73].
Defendant's first motion for summary judgment was filed on December 17, 2003. [Rec. No. 25]. Plaintiff's response to Defendant's motion argued the motion was premature because both experts dealing with damages had yet to be deposed. [Rec. No. 26]. Plaintiff later supplemented its response in "Plaintiff's Supplemental Response to Defendant's Motion for Summary Judgment." [Rec. No. 27]. The "supplemental response" includes the testimony of Plaintiff's expert, Dr. Robert Rand. Plaintiff argues that there are in fact damages and "[t]he only question in this case is how much [sic] dollars to put in the blanks." [Rec. No. 27]. Plaintiff subsequently filed "Plaintiff's Reply to Defendant's Supplemental Response to Defendant's Motion to Dismiss or in the Alternative for Summary Judgment" [Rec. No. 34]. Having granted the parties' joint motion for a continuance, the Court dismissed as moot Defendant's first motion for summary judgment. [Rec. No. 55]. Defendant's instant motion for summary judgment [Rec. No. 77] was filed on June 16, 2005 and "Plaintiff's Fifth Response to Defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment or to Exclude Plaintiff's Expert" [Rec. No. 79] was filed on July 28, 2005.
Counsel for Plaintiff, Mr. Walter Boyaki, filed a "Motion to Withdraw" [Rec. No. 74] on July 6, 2005. That motion asks the Court to permit Mr. Boyaki to withdraw as attorney of record for Plaintiff Gloria Telles. The motion to withdraw is pending. In "Plaintiff's Fifth Response to Defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment or to Exclude Plaintiff's Expert," Mr. Boyaki states: "Plaintiff's present counsel has filed a motion to withdraw from representation since he has a history with this court that is detrimental to the interests of his clients. . . . However, these motions require a response which this court directed undersigned to file by July 28, 2005, despite the motion for withdrawal still pending. It is more appropriate for new counsel, assuming one can be found, to file this response." [Rec. No. 79]. The Court notes that our Circuit has opined: "it is incumbent on the court to assure that the prosecution of the lawsuit before it is not disrupted by the withdrawal of counsel, and that the withdrawal of counsel is for good cause." Broughten v. Voss, 634 F.2d 880, 882-83 (5th Cir. 1981). Further, when an attorney agrees to undertake the representation of a client, he is expected to see the work through to completion. See Streetman v. Lynaugh, 674 F.Supp. 229, 234 (E.D.Tex. 1987). While the Court will not address Mr. Boyaki's unfounded fears that his "history with the court" is "detrimental to the interests of his clients," the fact is that his client Gloria Telles' interests are at stake. Unless the Court were to grant his motion to withdraw, Mr. Boyaki remains duty bound to prosecute the case and respond properly to Defendant's motion for a summary judgment. If Mr. Boyaki feels this Court has erred, an appeal to the Fifth Circuit is the appropriate remedy.
This lawsuit arises from the repercussions of a heinous crime. On September 27, 1997, five month old Fabian Barraza ("Jacob") was transported as a civilian emergency to WBAMC with life threatening injuries. The injuries were inflicted by his biological mother and are commonly known as "shaken baby syndrome." As a result of the abuse, Jacob was unconscious and in respiratory distress upon arrival at WBAMC. As Jacob was being taken to surgery, his pupils were dilating demonstrating that his severe brain swelling was herniating the medial part of his brain and pushing on the brain stem, which could cause his death very quickly. WBAMC neurosurgeon, Dr. Kaveh Khajavi, saved Jacob's life by performing an emergency craniotomy and subdural hematoma evacuation. To evacuate the subdural hematoma and reduce the immense pressure in Jacob's skull, Dr. Khajavi removed a 3 × 5 centimeter section of Jacob's skull. This piece of skull, the focus of this suit, is called the "bone flap." After evacuating the subdural hematoma, Dr. Khajavi could not replace the bone flap because the swelling was so severe that the brain was protruding through the defect in his skull. WBAMC subsequently transferred Jacob to Thomason Hospital on October 8, 1997. Defendant did not further treat Jacob after his transfer.
Fabian Barraza's name was subsequently changed to Jacob Telles when he was adopted by Plaintiff Gloria Telles.
Plaintiff Gloria Telles ("Plaintiff Telles") alleges that Defendant breached the standard of care when WBAMC allegedly lost Jacob's bone flap. Plaintiff alleges the loss of Jacob's bone flap caused Jacob to wear a helmet during his formative years and submit to surgery in an attempt to close the defect. Defendant argues Plaintiff has no evidence that it lost Jacob's bone flap. Additionally, Defendant claims that even if it lost Jacob's bone flap, neither Plaintiff nor her expert, Dr. Rand, can show any actual injury or show that the loss was the proximate cause of any injury.
Defendant now moves to dismiss the case pursuant to Federal Rule of Civil Procedure 12 and in alternative moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). If, on a motion asserting the defense of failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. FED. R. CIV. P. 12. The Court therefore treats Defendant's instant motion as a motion for summary judgement.
"Plaintiff's Fifth Response to Defendant's Motion to Dismiss or in the Alternative Motion for Summary Judgment or to Exclude Plaintiff's Expert" [Rec. No. 79] is Plaintiff's response to Defendant's instant motion for summary judgment. The response purportedly incorporates its previously filed responses. [Rec. Nos. 26, 27, 34 and 40].
II. SUMMARY JUDGMENT STANDARD
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Ragas, 136 F.3d at 458. Further, the court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-52 (2000).
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458.
Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. LAW AND ANALYSIS
Plaintiff Telles filed her Complaint, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et. seq., alleging Jacob sustained injury as a result of Defendant's negligence. [Rec. No. 1]. Plaintiff Telles alleges that Defendant breached the standard of care when it allegedly lost Jacob's bone flap. Defendant argues this Court should dismiss Plaintiff's claim because there is no genuine issue of material fact on the questions of breach of the standard of care, actual injury and proximate cause.
With respect to any alleged negligence, the United States as sovereign, is immune from suit except to the extent it consents to be sued. United States v. Orleans, 425 U.S. 807, 813 (1976); Honda v. Clark, 386 U.S. 484, 501 (1967). Under the FTCA, however, the United States waives its sovereign immunity in cases alleging the negligent action of the United States' employees acting within the course and scope of their employment. 28 U.S.C. §§ 1346 (b), 2671-80. Under the FTCA, the United States will be "liable in damages only if a private person would be liable for the same allegedly negligent act or omission under the laws of the state within which the act or omission occurred." Skipper v. United States, 1 F.3d 349, 352 (5th Cir. 1993). To determine whether a private person would be liable, and thus whether the United States is liable in a given case, courts apply the law of the state "where the act or omission occurred." Crider v. United States, 885 F.2d 294, 296 (5th Cir. 1989) (quoting 28 U.S.C. § 1346(b) (1982)); Rayonier, Inc. v. United States, 352 U.S. 315, 318 (1957). Because all of the alleged acts and omissions occurred in Texas, Texas state tort law governs the question of Defendant's liability.
Under Texas law, negligence consists of the following four elements: (1) legal duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) actual injury to the plaintiff; and (4) a showing that the breach was a proximate cause of the injury. Skipper, 1 F.3d at 352; Urbach v. United States, 869 F.2d 829, 831 (5th Cir. 1989). Moreover, Plaintiffs bear the burden of proof at trial. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1966). To meet this standard in a medical negligence case, Plaintiffs must present evidence of a "reasonable medical probability" or "reasonable probability" that their injuries were caused by the negligence of one or more defendants. Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397 (Tex. 1993).
The Texas Supreme Court has clearly established that in order for plaintiffs to meet their burden and establish a "reasonable medical probability" in a medical malpractice case, the court must rely on expert testimony. Hart, 399 S.W.2d at 792. "There can be no other guide, and where want of skill and attention is not thus shown by expert evidence applied to the fact, there is no evidence of it proper to be submitted to the jury." Id; see Bowles v. Bourdon, 219 S.W.2d 779, 785 (Tex. 1949) (holding that a patient has no cause of action against his doctor for alleged malpractice, either in diagnosis or recognized treatment, unless patient proves by a doctor of the same school of practice that diagnosis or treatment was such as to constitute negligence and that it was a proximate cause of patient's injuries); see Edwards v. United States, 519 F.2d 1137, 1140 (5th Cir. 1975) cert. denied 425 U.S. 972 (1976) (holding under Texas law, expert testimony must establish a professional standard of care and a deviation from that standard).
The threshold issue in a medical malpractice cause of action is the standard of care. Hall v. Tomball Nursing Ctr., Inc., 926 S.W.2d 617, 620 (Tex.App.-Houston [14th Dist.] 1996, no writ). The standard of care of a physician in Texas is that of a duty of ordinary care "to render care to a patient with the degree of ordinary prudence and skill exercised by physicians of similar training and experience in the same or similar community under the same or similar circumstances." Hollis v. United States, 323 F.3d 330, 336 (5th Cir. 2003). The standard of care must be established through expert testimony unless the mode or form of treatment is a matter of common knowledge or is within the experience of a lay person. Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977); King v. Flamm, 442 S.W.2d 679, 681 (Tex. 1969).
The burden of proving that the medical care complained of was negligent and that such negligence was the proximate cause of harm rests squarely with the plaintiff. Bowles, 219 S.W.2d at 782. To raise a triable issue, the plaintiff is required to produce evidence of a reasonable medical probability that an injury was caused by the defendant's negligence and the ultimate harm and condition resulted from such negligence. Kramer v. Lewisville Memorial Hosp. Inc., 858 S.W.3d 397, 400 (Tex. 1993). A party can recover for allegations of malpractice only when it can be affirmatively demonstrated that the diagnosis or treatment was not an error of judgment, but a matter of negligence which proximately caused the injury she claims. Shevak v. United States, 528 F.Supp. 427, 432 (N.D. Tex. 1981); Williford v. Banowsky, 563 S.W.2d 702, 705 (Tex.App.-Eastland 1978, pet. ref'd n.r.e.).
A. Breach of the Standard of Care
Plaintiff claims Defendant breached the applicable standard of care when it lost the bone flap. Defendant moves for summary judgment alleging there is no genuine issue of material fact because the evidence establishes the Defendant did not breach the standard of care as it did not lose Jacob's bone flap. Defendant presents evidence that on October 8, 1997, a discharge progress note written by Dr. Clark Michael Comeaux, less than one hour before Jacob's transfer to Thomason Hospital, shows the Defendant transferred Jacob "to Thomason Hospital with his photo films, CT's bone flap." (DEX 3, Jacob's Inpatient treatment Record p. 368, 372). Further, Defendant presents deposition testimony that indicates the bone flap was transferred to Thomason Hospital. [DEXs 3, 4, 5]. Defendant argues "Plaintiff has produced nothing beyond rank conjecture and utter speculation to counter Defendant's evidence which shows that it is more likely than not that the bone flap was transferred to Thomason" and "[c]onsequently, Plaintiff Telles has not and cannot carry her burden of establishing that the Defendant breached the standard of care; therefore, summary judgment is appropriate." [Rec. No. 77].
Plaintiff's response to Defendant's motion for summary judgment is:
1) "We did not lose it. They did." The record shows clearly [Defendant] received it, cannot account for it and it never got to R.E. Thomason General Hospital. (See Exhibit A).
2) "There is no negligence." There really is. See previous responses. It really is negligence to lose bone flaps."
[Rec. No. 79].
In addition to the October 8, 1997 discharge progress note, Dr. Comeaux testified at his deposition on December 21, 2004 that if these items were not in fact transferred with Jacob that he would have made an addendum in his record. [DEX 4]. Additionally, Mr. William Bowen, who was the lead data transcriber in specimen handling at the department of pathology at WBAMC, testified at his deposition that in his fourteen years on the job he had never been involved in the losing of a sample nor heard of a sample being lost. [PEX A]. Dr. Robert Ranlett, Chief of Pathology at WBAMC in 1997, testified at his February 11, 2004 deposition that the evidence shows the bone flap was transferred to Thomason. Regarding the discharge note, Dr. Ranlett testified:
Q: And that note tells you that the patient was transferred to Thomason General Hospital with his films, CTs, and his bone flap?
A: That's what it tells me. . . . I would have no more than this. The only way I would have a better record than this is if I transferred it using FedEx or something else that would give me a receipt for the actual transfer process, which I probably wouldn't use for an in-town transfer. . . .
Q: So you're saying here today there's no question in your mind that the bone flap was sent with the patient to Thomason?
A: That's my assumption reading that, yes.
[DEX 5, p. 52, Line 22].
Viewing all inferences in the light most favorable to the nonmoving party, this Court accepts Plaintiff's factual allegations as true for purposes of ruling on this motion. See Matsushita Elec. Indus. Co., Inc. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). However, Plaintiff has supplied the Court with no evidence other than sheer speculation to counter Defendant's evidence. See Matsushita, 475 U.S. at 585-87 (holding once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue.). After carefully examining Plaintiff's response [Rec. No. 79] to Defendant's motion for summary judgment [Rec. No. 77], the entire summary judgment record including all of the previous responsive pleadings, the Court agrees with Defendant that Plaintiff Telles has not and cannot carry her burden of establishing that the Defendant breached the standard of care by losing the bone flap. Plaintiff has produced no evidence to counter Defendant's evidence and raise a genuine issue of material fact. The Court, however, does not cease its analysis at this point. Rather, it proceeds with its analysis under the assumption that Defendant did in fact lose the bone flap and that such loss was a breach of a duty.
B. Actual Injury to the Plaintiff and Proximate Cause
The Court next addresses whether there is a genuine issue of material fact as to whether Plaintiff can establish an actual injury caused by the loss of the bone flap and whether Defendant's alleged breach of duty proximately caused Plaintiff's injuries. Plaintiff and Plaintiff's expert, Dr. Rand, admit that Jacob's current injuries are solely the result of the child abuse his biological mother inflicted on him and not the result of any actions of the Defendant for the approximately thirteen days he was in the care of WBAMC. Dr. Rand's Rule 26(a)(2)(B) expert report claims that the loss of bone flap caused the following two injuries to Jacob: 1) to be condemned to wear a helmet for several years to protect his head, and 2) to undergo a subsequent major cranioplasty. (DEX 7).
A cranioplasty is the surgical repair of a defect or deformity of the skull.
1. Injury: Having to Wear a Helmet
Gloria Telles and her expert both admitted during deposition that Jacob suffered no injury from having to wear a helmet. [Rec. No. 77]. Plaintiff's counsel argues "[t]he Defense would have the court rule on the case without the benefit of a trial despite the strong and obvious facts of negligence, proximate cause and damages." [Rec. No. 79].
Dr. Rand admitted that the loss of the bone flap did not cause any injury. His deposition testimony is as follows:
Q: So when we get right down to it, two points. [Jacob] wearing a helmet to protect his head —
A: Yeah
Q: — was a benefit to him, right?
A. I believe so.
Q: And didn't cause him any injury that you can testify to?
A: Not that I'm aware of.
Q: And the fact that he — the fact Dr. Khajavi couldn't replace the bone flap at the initial surgery predestined [Jacob] to undergo another cranioplasty at some point.
A: To undergo another operation and a cranioplasty. Yes.
[Rec. No. 77].
However, Dr. Rand claims that "to wear the helmet for several years to protect his head" is an injury. Yet, there is no medical evidence to support Dr. Rand's assertion in his expert report that "the loss of the bone flap condemned [Jacob] to several years of wearing a helmet to protect his head . . ." [DEX 7]. December 1997 medical records show that Dr. Richard George, the treating pediatric neurosurgeon to whom Texas Tech doctors referred Jacob, diagnosed him with positional plagiocephaly and scheduled Jacob to be fitted with a cranial remodeling helmet. [DEX 8, 9]. Additionally, Dr. Stephen Huhn stated that this benign condition is most likely the result of Jacob's preferential sleep position, is unrelated to the alleged failure to preserve the bone flap, and probably pre-dated the September 1997 surgery. [DEXs 11, 13]. Furthermore, Dr. George recommended that the cranial remodeling helmet be worn until 12-14 months of age. [DEX 8]. Even accepting as true Plaintiff's assertion that Jacob wore the helmet for "years" despite Dr. George's recommendation, Plaintiff admitted that Jacob only wore the "helmet off and on." [DEX 1]. Plaintiff further admitted that Jacob suffered no injury as a result of wearing the helmet and that at no point during this period did Jacob suffer an injury to his head due to the defect in his skull. [DEX 1]. Thus, the cranial remodeling helmet was not prescribed to "protect his head" and the prescribed length of use was four to six months (Jacob was approximately eight months of age at the time Dr. George prescribed the use of the helmet until twelve to fourteen months of age).
Texas Tech Medical Center was a treating hospital wholly independent of Defendant.
Dr. Rand defines plagiocephaly as "an asymmetry of the back of the skull." [Rec. No. 34, Deposition of Dr. Woody, Page 19, line 10].
The evidence in this case demonstrates that there is no material fact regarding the helmet allegation and that Jacob suffered no injury from having to wear the helmet. Accordingly, summary judgment is proper as to this allegation.
2. Injury: Additional surgery
Plaintiff's second allegation of injury is the assertion that Jacob had "to undergo a subsequent major cranio-plasty procedure." [DEX 7]. Plaintiff presents no evidence that the loss of the bone flap caused any actual injury to Jacob because the "subsequent major cranioplasty" would have occurred even if the bone flap was not lost. Specifically, Plaintiff's expert Dr. Rand admits that it was not the loss of the bone flap that prevented the Texas Tech doctors from attempting to repair Jacob's defect, but rather the Texas Tech doctors' erroneous assumption that Jacob's defect would re-ossify, i.e. repair itself thus obviating the need for a reconstructive cranioplasty. [DEX 6, p. 96, Line 4]. Dr. Rand does not dispute that the treating physicians at Texas Tech formulated the plan to wait until Jacob was three or four years old to repair his defect. Id. Because Dr. Rand conceded that at the time of the July 2001 repair cranioplasty the bone flap could not have been used, there can be no injury attributed to the bone flap loss. Plaintiff's counsel, first summarizes Defendant's argument and then presents its own argument, by stating: "`There is no damage.' See previous responses and the $45,781.85 bill for the subsequent surgery which qualifies under the Texas Pattern Jury Charge as damages." [Rec. No. 79].
Dr. Rand testified that the bone flap, if it had been preserved, could have been used for up to one year. [DEX 6]. On December 8, 1997, Dr. George opined that Jacob's "cranial defect will likely re-ossify, however, if this persists until 2 to 3 years of age, a cranioplasty with autologous bone or split calvarial graft may be indicated." [DEX 8]. Dr. George did not believe that a repair cranioplasty should even be considered until Jacob was two to three years old. Dr. George, who is a Texas Tech and non-Defendant physician, was the doctor who formulated the plan to wait for more than one year before attempting a second operation to repair Jacob's defect. At deposition, Dr. Rand testified:
Q: I've showed you page 35 out of the Texas Tech medical records.
A: Yes
Q: I've showed you page 55 out of the Texas Tech medical records.
A: And as you've read, they both state that the plan is to wait until the child is four to five years old to do the reconstruction.
A: Well the reason you have to wait —
Q: I'm not asking that.
A: Yes.
Q: They both state that is the plan.
A: But there's a reason for that.
Q: No. Here's my question though: Do you agree that they both state that that's the plan?
A: Yes
Q: You agree that from reading Dr. George's medical records and letter and looking at the Texas Tech records, that they did not intend to do a reconstructive cranioplasty in the year following the emergency hematoma evacuation?
A: Yes
Q: Do you agree with that?
A: I don't agree with it, but —
Q: I know you don't agree with what these doctors are opining, but you agree that was their thinking?
A: That was their thinking.
Q: That's what the records show.
A: Yes.
Q: So there's no argument that at Texas Tech or Thomason Hospital — and I've showed you the outpatient discharge not in these records — there's no argument that they were trying to do the cranioplasty, but couldn't because, allegedly, the bone flap was gone right?
A: I don't know.
[DEX 6, p. 96, Line 4]. Dr. Rand later testified:
Q: I understand that you don't agree with these [Texas Tech] doctors, but what I'm asking you is: Do you have any evidence that anybody was trying to do a reconstructive cranioplasty in the year following the emergency operation performed at William Beaumont?
A: Not from the records you've shown me and I've read. No.
[DEX 6, p. 97, Line 24 and p. 98, Line 1]. Therefore, unless spontaneous re-ossification occurred, the second cranioplasty was the only way that the defect could be repaired. The record shows that Jacob's cranial defect did not re-ossify and Plaintiff elected to have a split thickness graft performed in July of 2001. [DEXs 1, 10].
Spontaneous re-ossification is the spontaneous formation of bone such that the defect would close or heal itself.
Dr. Bradley Weprin was the pediatric neurosurgeon who recommended and conducted the split thickness calvarial graft. Dr. Weprin testified that of the available methods to remedy the defect, the split thickness calvarial graft is the method he uses "unless I'm forced to use otherwise." [DEX 10]. Dr. Weprin further testified that he never inquired about Jacob's bone flap because his preference is to use fresh bone — regardless of whether it had been available or not. Thus, even if the bone flap had not been lost, Dr. Weprin would not have used it for the repair cranioplasty on July 3, 2001. Plaintiff does not allege complications resulted from this surgery and Dr. Robert Woody, a treating neurologist, wrote that the "reconstructive surgery of the skull defect was very successful." [DEX 12].
Plaintiff Telles herself admits that Jacob was going to need the second surgery because the bone flap was not put back in during the first surgical intervention by WBAMC. It is undisputed it could not have been re-attached at that time. Plaintiff Telles testified:
Q: ". . . With regard to the surgery in Dallas, they described that as a cranioplasty, which is a procedure to cover the defect. From my reading of the records, I ask if you would agree with this, that [Jacob] was going to need a subsequent procedure to close the defect, regardless of whether the bone flap was lost or not, right?
A: Absolutely.
[DEX 1, p. 60, Line 20]. Plaintiff Telles later testified:
Q: But can you tell me what, if any, injury that caused Jacob?
A: It could have caused him a lot of complications during the skull surgery. Of course, thankful to God that it didn't, but it could have. It could have made a difference for the more positive if we'd found it. And I still don't understand how it got lost.
[DEX 1, p. 57, Line 19].
Even assuming Plaintiff's evidence established Defendant breached the standard of care, Plaintiff has not demonstrated that such breach proximately caused any injury. "Evidence of proximate cause must show that in the absence of the alleged breach the harm would not have occurred, and must state, describe or explain the connection between the breach and the harm in sufficient detail to support the expert's assertion of proximate cause." Guile v. United States, ___ F.3d ___, 2005 WL 1971267, *5 (5th Cir. 2005). The evidence in this case demonstrates that there is no genuine issue of material fact regarding the appropriateness of the second cranioplasty nor the manner in which it was performed. Assuming that the cranioplasty was performed within one year and the lost bone flap could have been used, there is no evidence that Defendant's actions had anything to do with the delay of the cranioplasty more than a year. Because Plaintiff has produced no evidence on injury and proximate cause, she has failed to establish a prima facie case of medical malpractice and cannot carry her burden of proof at trial. Accordingly, Defendant is entitled to summary judgment.
IV. CONCLUSION
"The very mission of the summary procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." John Hancock Mutual Life Ins. Co. v. Johnson, 736 F.2d 315, 317 (5th Cir. 1984). Plaintiff has failed to produce expert medical testimony or competent evidence sufficient to establish a breach of the standard of care, actual injury, and proximate cause. She has failed to establish a prima facie case of medical malpractice and cannot carry her burden of proof at trial. Because of the lack of necessary proof in this case, this Court must GRANT Defendant's Motion for Summary Judgment.
IT IS THEREFORE ORDERED that "Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" [Rec. No. 77] is GRANTED.