Brandt v. Surber

• Decision Date: 08 June 2006
• Docket Number: No. 13-02-00360-CV.,13-02-00360-CV.
• Citation: 194 S.W.3d 108
• Parties: Terry BRANDT, M.D., Randall S. Zane, M.D., and Michael J. Burke, M.D., Appellants, v. Kelley Brooke SURBER, Individually and on Behalf of the Estate of William Tate Surber, Deceased, and as Next Friend of Loren Bailey Surber and Nicholas Tate Surber, Minor Children, Walter Sidney Surber, and Margie Surber, Appellees.
• Court: Texas Court of Appeals

194 S.W.3d 108

Terry BRANDT, M.D., Randall S. Zane, M.D., and Michael J. Burke, M.D., Appellants, v. Kelley Brooke SURBER, Individually and on Behalf of the Estate of William Tate Surber, Deceased, and as Next Friend of Loren Bailey Surber and Nicholas Tate Surber, Minor Children, Walter Sidney Surber, and Margie Surber, Appellees.

No. 13-02-00360-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 8, 2006.

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Carlos Villarreal, Hermansen, McKibben, Woolsey, Thomas F. Nye, Brin & Brin, Corpus Christi, for appellants.

Darrin Walker, Law Office of Darrin Walker, Kingwood, Mary Wilson, Clem V. Lyons, Laura R. Pazin, Lyons & Rhodes, San Antonio, Sam H. Burris, Alice, for appellees.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

OPINION

Opinion by Justice HINOJOSA.

This is an appeal from the trial court's judgment in a medical malpractice case that arose from the death of William Tate Surber ("Tate"). Appellees, Kelley Brooke Surber ("Brooke"), individually and on behalf of the Estate of William Tate Surber, Deceased, and as next friend of Loren Bailey Surber and Nicholas Tate Surber, minor children, Walter Sidney Surber, and Margie Surber, sued appellants, Terry Brandt, M.D., Randall S. Zane M.D., and Michael J. Burke, M.D., alleging that appellants' failure to order an angiogram following two episodes of severe bleeding was the cause of Tate's death and amounted to medical malpractice. After nine days of testimony, a jury found in favor of appellees, and the trial court rendered judgment in accordance with the jury's findings. Drs. Brandt and Zane challenge the judgment in seven issues; Dr. Burke challenges the judgment in three issues. We affirm.

I. Background

Tate suffered from advanced allergic fungal sinusitis. On September 25, 1998, he underwent surgery at Spohn Hospital in Corpus Christi, Texas, to remove polyps and other fungal tissue from his sinus cavities. Surgery was performed by Dr. Brandt, an otolaryngologist, and Dr. Burke, a neurosurgeon. Near the end of surgery, Tate began bleeding briskly from inside his sinus cavity. In his operative report, Dr. Brandt dictated that during the surgery,

both sphenoid sinuses were opened and then the intra sinus septum was also removed. The sphenoid sinus on the right side was found to be extensive in its depth and in lateral extension. The left sphenoid sinus was extensive in its vertical direction.

He described that

[w]hen the nose was being suction[ed], spontaneous bleeding started on the right side posteriorly. This was way back in the nose in the general area of the sphenoid sinus or posterior ethmoid area. Fairly extensive brisk bleeding occurred in this location from the lateral wall surface. Monopolar cauterization was attempted [by Dr. Brandt] without success, and then the microscope was brought in and bipolar cauterization was done [by Dr. Burke] with pituitary micro surgical instruments with satisfactory control of bleeding. Approximately 200 to 250 cc. of blood was lost during this episode.

The postoperative report described the operative complications as "increased bleeding due to extensive polyploid disease and bleeding close to the termination of the case from the right posterior nose, nasopharynx and sphenoid sinus area requiring control with electrocautery." Tate was discharged from the hospital on September 29, 1998, and attended a follow-up office visit with Dr. Brandt on October 1.

On October 3, 1998, Tate returned to the emergency room at Spohn Hospital due to heavy bleeding from the right side of his nose and was admitted for "severe epistaxis/post-operative hemorrhage." Dr. Zane, an otolaryngologist who was on call for Dr. Brandt, performed a second surgery to stop the bleeding. The medical records describe that Tate began to have

brisk bleeding from the right side of the nose initially and then from both sides of the nose. He went through 2 rolls of toilet paper trying to control the bleeding, and this did not take care of it. It began to slow with some ice and he was driven to the emergency room by his wife from Orange Grove. On arrival he was hemodynamically stable with some steady oozing from both sides of his nose.

Tate was taken immediately to the emergency room for examination under anesthesia. Dr. Zane's post-operative notes described that

the sphenoid sinus was identified and it was widely open with the posterior most aspect of the septum having been removed. An obvious bleeding vessel was squirting from inside the sphenoid sinus on the right lateral wall, a constant flow. This area was further cleaned with suction and it appeared to be close to the region of the carotid canal. Landmarks were poor inside the sinus because of the amount of clot and because of the swollen remaining mucosa. The sphenoid sinus was irrigated copiously with saline giving a little bit better view. Then, under direct vision, the bleeding vessel was cauterized using the bipolar cautery and around this lightly with the monopolar cautery. This controlled the bleeding.

Dr. Zane characterized the procedure as "endoscopic control of sphenoid sinus hemorrhage." Dr. Zane's deposition testimony described the bleeding vessel as being one to two millimeters and "standing up like a garden hose" and "squirting across the sphenoid wall." Tate was released from Spohn Hospital on October 6th. He saw Drs. Brandt and Burke, individually, for follow-up visits on October 15th, and was released on that day to go back to work on light-duty.

On October 21, 1998, sometime after 11:00 p.m., Tate again began to bleed profusely from his nose. Tate's wife, Brooke, called Tate's brother, Walter Sidney Surber, Jr. ("Buddy"), who lived nearby and asked him to drive Tate back to Spohn Hospital from their home in Orange Grove, approximately 45 minutes away. En route, Tate continued bleeding heavily and lost consciousness. In Orange Grove, Texas, Buddy passed an off-duty sheriff's deputy and pulled over to request help. At 12:15 a.m., the officers called for an ambulance, while Buddy and Brooke attempted to perform CPR. An ambulance and paramedics arrived on the scene at 12:35 a.m. At the time the ambulance arrived, Tate had no pulse and no blood pressure. EMS records reflect that Tate was in full cardiac arrest and was hemorrhaging from his mouth and nasal cavity. Tate was transported to Columbia Alice Physician's & Surgeon's Hospital in Alice, Texas, where he was pronounced dead.

II. Sufficiency of the Evidence

In the first five issues of Drs. Brandt and Zane, and in Dr. Burke's first and second issues, appellants contend the evidence is legally and factually insufficient to support the jury's findings.

A. STANDARD OF REVIEW

When we review a "no evidence" or legal sufficiency of the evidence issue, we view the evidence in the light most favorable to the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). We sustain a no-evidence challenge only when the record discloses that (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 a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.

When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the jury's finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 445 (Tex.1989). We review the evidence keeping in mind that it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Pickett v. Keene, 47 S.W.3d 67, 74 (Tex.App.-Corpus Christi 2001, pet. dism'd). We set aside the jury's finding only when we find that the evidence standing alone is too weak to support the finding, or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

To prevail on a medical malpractice claim, a party is required to establish four elements: (1) a duty by the physician to act according to a certain standard of care, (2) a breach of the applicable standard of care, (3) injury or harm to the plaintiff, and (4) a causal connection between the breach of the applicable standard of care and the injury or harm. Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.App.-Corpus Christi 2001, pet. denied).

B. PROXIMATE CAUSE

We first address appellants' contention that the evidence establishing proximate cause is legally and factually insufficient. To establish proximate cause, a plaintiff must prove both (1) cause-in-fact, and (2) foreseeability. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988).

1. Cause-in-Fact

To show cause-in-fact, appellees were required to establish a causal connection between the injuries suffered and the negligence of appellants based upon "reasonable medical probability," not mere conjecture, speculation, or possibility. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex.1993); Duff, 751 S.W.2d at 176. The ultimate standard of proof on causation is...