Brownsville Pediatric Ass'n v. Reyes

Decision Date03 January 2002
Docket NumberNo. 13-00-273-CV.,13-00-273-CV.
Citation68 S.W.3d 184
PartiesBROWNSVILLE PEDIATRIC ASSOCIATION and Dr. Gloria Medina, Appellants, v. Jaime REYES, as Next Friend of Juan Pablo Reyes, an Incompetent, Appellee.
CourtTexas Court of Appeals

Reagan Wm. Simpson, Fulbright & Jaworski, Houston, W. Wendell Hall, Fulbright & Jaworski, San Antonio, for appellants.

Jeffrey Lee Hoffman, Stan L. Pfeiffer, Pfeiffer, Vacek, Pfeiffer, Scruggs & Hoffman, Houston, Randall P. Crane, Law Office of Randall P. Crane, San Benito, for appellee.

Before Chief Justice VALDEZ and Justices DORSEY and RODRIGUEZ.

OPINION

Opinion by Justice RODRIGUEZ.

This is a medical malpractice case filed against appellants, Dr. Gloria Medina and her employer, Brownsville Pediatric Association, by appellee, Jaime Reyes, as next friend of Juan Pablo Reyes. A jury found Dr. Medina negligent in caring for Juan Pablo when he was a newborn. By seven issues, appellants contend (1) the evidence of medical causation is legally and factually insufficient, (2) the damage award is excessive, and (3) the trial court committed reversible error on evidentiary issues. Appellants also challenge the award of prejudgment interest against Brownsville Pediatric Association. We affirm.

Juan Pablo, a twin, was born prematurely on February 1, 1978. He was transferred to Valley Community Hospital where Dr. Medina assumed his care for approximately nine weeks until his discharge. Upon discharge from Valley Community Juan Pablo was blind and suffering from severe neurological impairments, including spastic paraplegia. The type of brain damage sustained by Juan Pablo is Periventricular Leukomalacia (PVL).

On August 30, 1996, approximately eighteen years after Juan Pablo's birth, suit was filed against a number of health care providers who had cared for Juan Pablo when he was born. Dr. Medina was one of the original defendants. Brownsville Pediatric Association was added as a defendant in October 1997. Two years later the case was tried to a jury. Finding Dr. Medina's negligence proximately caused Juan Pablo's injury, the jury returned a verdict against appellants and awarded damages exceeding $8,000,000.00, of which $6,500,000.00 was for future medical care. After applying settlement credits,1 the trial court rendered judgment for Juan Pablo against Dr. Medina and Brownsville Pediatric Association in the amount of $3,318,420.30, including prejudgment interest.

By their first two issues, appellants complain of the sufficiency of the evidence. In analyzing a no-evidence complaint, this Court considers all evidence in a light most favorable to the party in whose favor the verdict has been rendered. Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will reverse only if no more than a scintilla of evidence supports the verdict. Havner, 953 S.W.2d at 711. In analyzing a factual sufficiency complaint, this Court reviews all the evidence and reverses if the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Because we are not fact finders, this Court may not substitute its judgment for that of the trier of fact, even if a different answer could be reached on the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998). Furthermore, the amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Id. (citing Mayes v. Stewart, 11 S.W.3d 440, 451 (Tex.App.-Houston [14th Dist.] 2000, pet. denied)).

Appellants contend in their first issue that the evidence is legally and factually insufficient to support a finding that Dr. Medina's negligence proximately caused the injuries sustained by Juan Pablo, one of the elements a plaintiff must prove in a medical malpractice cause of action in order to prevail. See id. Appellants contend that while the record contains generalized testimony from Juan Pablo's experts, Drs. Stanley Sharpe and Alison Brent, that the conduct of Dr. Medina caused Juan Pablo's blindness and/or brain damage, there is no testimony specifically identifying any single act or omission as a proximate cause of Juan Pablo's poor outcome.

To establish causation in a medical malpractice case,

plaintiffs are required to show evidence of a "reasonable medical probability" or "reasonable probability" that their injuries were proximately caused by the negligence of one or more defendants. We have interpreted this requirement to mean that the ultimate standard of proof 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. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995) (citations omitted); see Arguelles v. U.T. Family Med. Ctr., 941 S.W.2d 255, 258 (Tex.App.-Corpus Christi 1996, no writ). While the precise words of "reasonable medical probability" are not essential, evidence of causation must still rise above mere conjecture or possibility. See Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988); Bradley v. Rogers, 879 S.W.2d 947, 956 (Tex.App.-Houston [14th Dist.] 1994, writ denied).

Appellants assert that the evidence does not show that the following acts, either individually or collectively, about which appellee complains, caused Juan Pablo's injuries:

1. Under-ventilating and over-ventilating the infant;

2. Not performing intubations quickly enough while, at the same time, not making a proper use of an Ambu bag; and

3. Performing a double volume exchange transfusion when it was not indicated and then performing the procedure too quickly.2

Dr. Brent testified that Dr. Medina first ordered the ventilator set to breathe in for two seconds and out for one second. This resulted in a buildup of acid. Dr. Medina then ordered a change in the ventilator setting to breathe in for one second and out for two. The carbon dioxide (CO2) levels started down; however, as Dr. Brent testified, when the CO2 level drops too low, the blood supply to the brain will be constricted causing death of brain cells or PVL. Dr. Brent explained:

What happens is that when blood comes into your brain, it comes in to [sic] big vessels, and then these vessels branch off into smaller vessels.... So when you don't get much flow coming, first the blood, you are going to get it to the areas of the larger vessels, and then a little bit less will go into the smaller vessels, and when they timely get up to these little teeny vessels here, there is not enough pressure going to get the oxygen and nutrients out there. So these tissues around the ventricles we call the periventricular area, we start seeing evidence of cell death, and that's what we are seeing in cases of [PVL], these are areas that have died.... We are not getting good p[er]fusion, and we know the major indicator of that is this very low carbon dioxide blow out.

When asked if this is what occurred in Juan Pablo's case, Dr. Brent answered, "I am most certain that's exactly what happened." On cross-examination, she added,

[t]hey left [Juan Pablo] over-ventilated with high pHs and low CO2s, and that's where I think all the long term cumulative damage occurred, by sitting with that very low CO2, which we know from the scientific literature slows down brain p[er]fusion, slows down oxygen getting to your brain, causes that [PVL], and the bad neurological outcome and brain cell death.

Dr. Sharpe similarly testified that Juan Pablo was over-ventilated for over forty-eight hours, with no change in the ventilator setting ordered by Dr. Medina. He testified that "the [charted] blood gasses... show that the carbon dioxide value is getting too low for the infant," and that "these [low carbon dioxide] values reduce the blood supply to this infant's brain." Dr. Sharpe agreed that over-ventilation to the point of causing loss of blood perfusion to the center of the brain was another area of real concern with him because over-ventilating causes a person to be in Juan Pablo's condition.

Dr. Brent also testified that she found seven occasions in Juan Pablo's medical records where there were problems with intubations and extubations performed by Dr. Medina, problems that absolutely contributed to Juan Pablo's condition. She responded that "[t]hese long extended periods of the baby just languishing there is a big part of why he did so poorly in the long haul." Dr. Sharpe was also critical of Dr. Medina's care in this area. Dr. Sharpe identified four specific instances and described them as "prolonged, unreasonable, and bad judgment." Dr. Sharpe concluded:

Q: The extubation and then re-intubation problems, in a nutshell, what's the problem there, what's that going to do to this boy?

A: These caused periods of shock in him, adds to the problem of brain damage.

The record also reveals testimony regarding the cause of Juan Pablo's blindness and the ventilation and intubation/extubation procedures utilized by Dr. Medina. Dr. Sharpe explained that over-oxygenation can cause the type of blindness, retinopathy of prematurity (ROP), experienced by Juan Pablo. Dr. Sharpe testified that Juan Pablo's Valley Community medical records show that on most of the days he was there, the oxygen levels far exceeded safe levels, and the levels were not adjusted. He then testified:

Q: And ultimate[ly] that causes—

A: That would render the baby visually handicapped or even blind.

Q: Such as Juan Pablo?

A: As would have occurred in his case.

In summary, Dr. Brent agreed that each item identified, including improper ventilator management and multiple extubations and intubations, played a role in causing Juan Pablo's brain damage and blindness. Finally, near the end of his direct examination, Dr. Sharpe also summarized that the failures on the part of Dr. Medina...

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