554 S.W.3d 645 (Tex. 2018), 16-0125, Gunn v. McCoy

Docket Nº:16-0125
Citation:554 S.W.3d 645, 61 Tex.Sup.Ct.J. 1426
Opinion Judge:Green, Justice
Party Name:Debra C. GUNN, M.D., Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, P.L.L.C., Petitioners, v. Andre MCCOY, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person, Respondent
Attorney:Jeffery T. Nobles, Smith Haley Nobles, Barbara A. Hilburn, Harris & Hilburn, L.L.P., Nicholas D. Stepp, Akerman LLP, Thomas P. Sartwelle, Hicks Davis Wynn, P.C., Michael C. Feehan, Law Feehan Adams LLLP, Spencer G. Markle, Markle • DeLaCruz, LLP, Houston TX, Jim Hund, Linda Ruth St. Clair Russell...
Judge Panel:Justice Green delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Brown, and Justice Blacklock joined. Justice Guzman Justice Johnson, joined by Justice Boyd, dissenting.
Case Date:June 15, 2018
Court:Supreme Court of Texas
 
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554 S.W.3d 645 (Tex. 2018)

61 Tex.Sup.Ct.J. 1426

Debra C. GUNN, M.D., Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, P.L.L.C., Petitioners,

v.

Andre MCCOY, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person, Respondent

No. 16-0125

Supreme Court of Texas

June 15, 2018

Argued February 8, 2018

Rehearing Denied September 28, 2018

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ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

Jeffery T. Nobles, Smith Haley Nobles, Barbara A. Hilburn, Harris & Hilburn, L.L.P., Nicholas D. Stepp, Akerman LLP, Thomas P. Sartwelle, Hicks Davis Wynn, P.C., Michael C. Feehan, Law Feehan Adams LLLP, Spencer G. Markle, Markle • DeLaCruz, LLP, Houston TX, Jim Hund, Linda Ruth St. Clair Russell, Hund Krier Wilkerson & Wright, P.C., Lubbock, for Petitioners.

Alexander B. Klein III, Joseph Todd Trombley, for Respondent.

Erin E. Lunceford, for Amicus Curiae American Medical Association and Texas Alliance for Patient Access and Texas Medical Association.

Roger W. Hughes, for Amicus Curiae Texas Association of Defense Counsel.

Justice Green delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Brown, and Justice Blacklock joined.

OPINION

Green, Justice

This is a medical-malpractice case involving multiple issues. Shannon McCoy (Shannon) was thirty-seven weeks pregnant and under the prenatal obstetrical care of Dr. Debra Gunn, an obstetrician and gynecologist (ob/gyn) associated with Obstetrical and Gynecological Associates, P.A. (OGA). Shannon presented herself to the hospital with severe abdominal pain, where doctors determined that she had suffered placental abruption and that her fetus was not viable. Both during and after delivery, Shannon experienced complications that led to brain damage, quadriplegia, and later, her death. Acting as her guardian, Shannon’s husband, Andre McCoy (McCoy), sued the hospital and several attending doctors, including Dr. Debra Gunn, and their medical practice groups, including OGA.

The following issues are before us: (1) whether the court of appeals erred in holding that there was legally sufficient evidence of causation; (2) whether the trial court committed reversible error in excluding deposition testimony of the defendants’ expert witness regarding future medical expenses; (3) whether the medical billing affidavits providing proof of past medical expenses were proper under

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Texas Civil Practice and Remedies Code section 18.001; (4) whether the trial court erred in refusing to instruct the jury on unavoidable accident; (5) whether the trial court erred in granting McCoy’s no-evidence summary judgment as to the defendants’ affirmative defense of comparative responsibility; (6) whether OGA’s indemnity claims were properly asserted post-verdict; and (7) whether Shannon’s death on the eve of the court of appeals’ decision created a windfall for McCoy that calls for a remand in the interest of justice.

We agree with the court of appeals’ holdings that the evidence of causation was legally sufficient, that the affidavits submitted by McCoy were proper under section 18.001, that the trial court did not commit reversible error in refusing the requested instruction on unavoidable accident, and that OGA’s indemnity claim against Dr. Gunn was properly asserted. We hold that the trial court erred in excluding the video deposition testimony of the defendants’ expert witness; however, the error did not probably cause the rendition of an improper judgment. We reject Dr. Gunn’s argument that Shannon’s death created a windfall for McCoy, and we hold that Dr. Gunn waived her argument with regard to the trial court’s summary judgment on comparative responsibility. Therefore, we affirm the judgment of the court of appeals.

I. Background

Shannon McCoy was thirty-five years old and pregnant with her first child. Dr. Gunn, an ob/gyn associated with OGA, provided prenatal and obstetrical care to Shannon. Shannon first saw Dr. Gunn in March 2004, when she was estimated to be roughly nine weeks into her pregnancy. Her pregnancy was generally uneventful until September 13, 2004, when she was thirty-seven weeks into her pregnancy. On that morning, Shannon went to a routine prenatal visit with Dr. Gunn and everything appeared normal. Dr. Gunn ordered lab tests as a precautionary measure to check for hypertension; the lab results indicated that Shannon’s hemoglobin level was 9.5.1 That evening, Shannon presented to the Woman’s Hospital of Texas with severe abdominal pain. She was admitted at 8:50 p.m., and Dr. Mark Jacobs, the ob/gyn on call, ordered an ultrasound and discovered that the fetus had died due to placental abruption, a condition in which the placenta detaches from the uterine wall. Dr. Jacobs ordered lab tests, which indicated that Shannon had developed disseminated intravascular coagulation (DIC), a blood-clotting disorder which causes both abnormal blood clotting throughout the body and profuse bleeding. DIC can occur for multiple reasons, including placental abruption. There is no dispute that in Shannon’s case, DIC was not the fault of any party.

Dr. Jacobs consulted with Dr. Brian Kirshon, a maternal/fetal medicine specialist, and the two doctors ordered a blood-product replacement plan to counter Shannon’s DIC. Exactly how much blood Shannon lost and how much she received in the following hours— and how much she should have received— are heavily disputed. Some of this dispute stems from confusion in terminology between the parties and the court of appeals with respect to "blood" and "blood products." At no point did Shannon receive transfusions of whole "blood." Instead, it is undisputed that Shannon received the following components of blood, or "blood products": (1) packed red blood cells, which carry oxygen via hemoglobin to the body’s organs; (2)

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fresh frozen plasma (FFP), which contains factors that promote the clotting process; and (3) platelets, which are cell fragments that also promote the clotting process. Once separated from whole blood, the blood products are diluted with intravenous (IV) fluid before they are transferred to the patient. Dr. Kirshon recommended that Shannon receive two units of FFP and two units of packed red blood cells "in light of the DIC." On Dr. Jacobs’ order, FFP was given at 3:07 a.m. and 3:21 a.m., and the packed red blood cells were given at 3:56 a.m. and 4:50 a.m. Dr. Kirshon included the following recommendation: "I would have more blood products available and be on the look out for major postpartum hemorrhage."

Dr. Gunn arrived at the hospital around 4:00 a.m. on September 14 and assumed care of Shannon. Dr. Gunn consulted with Dr. Kirshon, and they agreed that vaginal delivery was necessary because of Shannon’s DIC. They hoped, as is often the case with placental abruption and DIC, that the DIC would self-correct after delivery. Shannon delivered a stillborn baby girl at 6:20 a.m. Nurses documented a verbal order from Dr. Gunn at 7:20 to give Shannon two more units of packed red blood cells and to draw blood for lab tests. The lab results indicated that Shannon had experienced significant blood loss, as measured by her hemoglobin level, and that her blood was not clotting normally. Specifically, the lab results indicated that Shannon’s hemoglobin level had dropped to 5.5, as compared to the lab results from Shannon’s prenatal visit the day before, when her hemoglobin level was 9.5. According to McCoy’s expert, "for every one point that the hemoglobin goes down, that’s approximately equal to one unit of blood" lost. The use of hemoglobin as an indicator of blood volume, however, is disputed by Dr. Gunn. Nurses documented a verbal order from Dr. Gunn at 9:00 a.m. to give Shannon four units of platelets, and another verbal order at 10:15 a.m. to give an additional two units of packed red blood cells, for a total of six units of packed red blood cells. No additional FFP was given to Shannon after the two units ordered by Dr. Jacobs. At 10:50 a.m., the nurses reported a decrease in urine output, and Dr. Gunn ordered that Shannon be given Lasix, a diuretic.

Shortly after 11:00 a.m., Shannons condition was considered stable and post-labor bleeding appeared to have lessened, so Dr. Gunn authorized her transfer to the intensive care unit (ICU). At 12:00 p.m., nurses documented that Shannons uterus was "boggy" and that she received uterine massage to induce firmness. Nurses documented a "large amount of...

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