Bustamante v. Enrique N. Ponte, Jr., M.D. & Pediatrix Med. Servs., Inc.

• Decision Date: 29 September 2017
• Docket Number: No. 15-0509.,15-0509.
• Citation: 529 S.W.3d 447
• Parties: Marcela and Jose BUSTAMANTE, as Next Friends of D.B., Petitioners, v. Enrique N. PONTE, Jr., M.D. and Pediatrix Medical Services, Inc., Respondents
• Court: Texas Supreme Court

529 S.W.3d 447

Marcela and Jose BUSTAMANTE, as Next Friends of D.B., Petitioners,

v.Enrique N. PONTE, Jr., M.D. and Pediatrix Medical Services, Inc., Respondents

No. 15-0509.

Supreme Court of Texas.

Argued December 8, 2016

OPINION DELIVERED: September 29, 2017

Craig T. Enoch, Amy L. Saberian, Enoch Kever PLLC, Austin, Domingo A. Garcia, Law Offices of Domingo A. Garcia, P.C., Dallas, J. Stephen Gibson, Shannon Gracey Ratliff & Miller, L.L.P., Dallas, James E. Girards, The Girards Law Firm, Dallas, Michael W. Huddleston, Munsch Hardt Kopf & Harr PC, Dallas, for Petitioners.

Diana L. Faust, Michelle E. Robberson, R. Brent Cooper, Cooper & Scully, P.C., Dallas, Elizabeth M. Fraley, Heather A. Kanny, Fraley & Fraley, L.L.P., Dallas, Paul M. Bracken, Robles Bracken & Hughes, LLP, El Paso, Jennifer Gossom Martin, Jennifer L. Murphy, Lisa M. Wilson, Susan C. Cooley, Timothy D. Ryan, Schell Cooley LLP, Addison, Douglas W. Alexander, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, Austin, for Respondents.

Justice Green delivered the opinion of the Court.

In this case, we must determine whether legally sufficient evidence supports a jury's conclusion that the negligence of a premature infant's treating neonatologist proximately caused her loss of vision. The evidence shows that, despite D.B.'s extreme prematurity, had her retinopathy of prematurity been diagnosed and treated early enough, it is more likely than not that the blood-vessel growth in her eyes would have been slowed to the point that she would have enjoyed a sighted life. We hold that legally sufficient evidence supports the jury's finding that the neonatologist's negligence, more likely than not, caused D.B.'s poor visual outcome. Accordingly, we reverse the judgment of the court of appeals as to the neonatologist and his professional association and remand the case to the court of appeals for consideration of issues not already addressed.

I. Background

D.B. was born prematurely at Del Sol Medical Center in El Paso, Texas, on May 19, 2005. She weighed 600 grams (1.32 pounds). D.B.'s gestational age at birth was estimated between 23 weeks and 1 day and 24 weeks. D.B. was admitted to Del Sol's neonatal intensive care unit (NICU) due to medical problems she suffered related to her premature birth.

Because of her severe prematurity, D.B. had a 90%–100% chance of developing retinopathy of prematurity (ROP), a retinal disorder that afflicts premature infants with low birth weights, causing abnormal blood-vessel growth in the eyes that can cause diminished vision or blindness, often by retinal detachment. Blindness from ROP is usually preventable. As a result of D.B.'s ROP, however, she became totally blind in her right eye, and the vision in her left eye is severely impaired.

D.B.'s parents, the Bustamantes, as next friends of D.B., sued Del Sol Medical Center (Del Sol), Enrique N. Ponte Jr., M.D. (D.B.'s neuroneonatologist, attending physician, and medical director of the NICU at Del Sol), and Jorge Fabio Llamas-Soforo, M.D. (D.B.'s ophthalmologist), claiming that their negligence and gross negligence caused D.B.'s vision loss.¹ Del Sol settled with the Bustamantes before trial, and the remaining claims were tried to a jury.

At trial, Dr. Ponte testified that, based on her severe prematurity, he believed that, at the time of her birth, D.B. had a 100% chance of developing ROP and a significant chance of requiring laser therapy to treat her eyes. He also testified that infants born significantly prematurely tend to develop ROP earlier and that he was concerned D.B. would have early onset ROP, requiring treatment at 29–36 weeks.

In 2001, the American Academy of Pediatrics, the American Association for Pediatric Ophthalmology and Strabismus, and the American Academy of Ophthalmology promulgated a joint statement (the 2001 Statement) regarding guidelines for ROP screening, in which they recognized that timely treatment requires timely screening. Thus, concerned that D.B. would develop ROP early and require treatment, Dr. Ponte claims that he requested an "early" examination of D.B.'s eyes. Accordingly, Dr. Llamas examined D.B.'s eyes on July 4, 2005 (week 29 or 30). Dr. Llamas claims he observed incomplete vascularization in zone II of the retina on July 4,² but he did not use the International Classification of Retinopathy of Prematurity (ICROP) terminology as recommended by the 2001 Statement to describe his observations. Instead, his notes state, "There is complete vascularization to 360 degrees. Impression: fetal fundi." Dr. Llamas claims he dictated "incomplete vascularization," but a transcription error resulted in the notes saying "complete vascularization." Dr. Ponte explained that he understood Dr. Llamas's notes to mean that D.B. had incomplete vascularization in zone I,³ but he also testified that he did not know whether she had zone I or zone II eyes at the first exam. Dr. Llamas and Dr. Ponte were the only witnesses to testify regarding the apparent transcription error.

Dr. Llamas recommended a follow-up exam in four weeks, which was contrary to the 2001 Statement's guidelines regarding the scheduling of follow-up exams.⁴ Under the 2001 Statement, even if vascularization was actually complete on July 4, which no party contends, there is no circumstance in which D.B.'s follow-up examination should have been scheduled four weeks later. If she had less than "threshold" ROP in zone I,⁵ follow-up should have occurred in one week. If she had ROP in zone II, or no ROP but incomplete vascularization in zone I, follow-up screenings should have occurred in one- to two-week intervals. If she had incomplete vascularization in zone II, follow-up screenings should have occurred in two- to three-week intervals. Finally, even if it appeared she had zone III vascular maturation at the first exam, this finding should have been confirmed by at least one repeat examination within two to three weeks.

Four weeks later, at the follow-up exam on August 1 (week 33 or 34), Dr. Llamas determined that ROP had developed and recommended laser treatment as soon as possible. His medical notes reflect that on August 1, D.B. had stage 3 ROP in both her left and right eyes in zone II, as well as plus disease and a vitreous hemorrhage. Based on pictures of D.B.'s eyes taken on August 3, one of the Bustamantes' experts, Dr. Darius Moshfeghi, testified that D.B.'s right eye had stage 3 ROP in zone I, plus disease in four quadrants, and a vitreous hemorrhage. Additionally, Dr. Moshfeghi testified that D.B.'s left eye had eight hours of stage 3 ROP in zone II and plus disease in four quadrants.

Due to difficulty securing the laser necessary for treatment, Dr. Llamas did not perform the laser therapy until three days after his detection of ROP—on August 4, 2015 (week 34 or 35). According to one of the Bustamantes' experts, Dr. William Good, pictures taken after the treatment suggest that Dr. Llamas failed to properly administer the laser treatment because there were "skip lesions"—"areas where the retinal burns either didn't take or were not administered." After treatment, D.B.'s right retina detached, causing her to lose vision permanently in her right eye. In her left eye, she has macular dragging, which often results in reduced central vision and severely impaired vision (20/1200 or 20/1300), and requires her to hold items close to her eye even with glasses.

The parties hired competing expert witnesses to testify regarding whether the doctors' negligence (not screening more frequently, delaying the diagnosis and treatment so that D.B. was not treated at pre-threshold ROP, delaying treatment three days after threshold ROP was observed, and not properly administering the laser treatment), if any, was the proximate cause of D.B.'s impaired vision. Dr. Good testified that if D.B.'s doctors had followed the proper exam schedule, "[b]ased on reasonable medical probability, ROP would have been diagnosed on July 18th," which would have enabled D.B. to receive laser treatment about a week before August 1.⁶ He testified further that D.B. was a high-risk infant who should have been treated when she had pre-threshold ROP, rather than threshold ROP. Accordingly, Dr. Good testified:

Well, if you look at the various places where negligence occurred, in an incremental fashion, each of those contributed to the poor visual outcome that [D.B.] experienced.

The delay in screening examinations for four weeks to a probability prevented Dr. Llamas from identifying ROP when it could have been treated earlier. That would have improved the chance of a good visual outcome for her.

The delay in laser treatment for three days also in my opinion incrementally increased the chances of a bad outcome for her.

And then, finally, the inadequate laser treatment I think really was the coup de grace here, and it basically placed these eyes at extremely high risk and was causally or proximately responsible for blindness in the right eye and poor vision in the left eye.

Dr. Good concluded that if the defendants had acted properly, "[m]ore likely than not, she would have ... a sighted life." Although Dr. Good conceded that D.B. had risk factors portending a negative outcome, such as vitreous hemorrhage and plus disease, he noted that D.B. lacked others, such as being a twin. Dr. Good also observed that D.B. did not have a vitreous hemorrhage or plus disease when she was first examined and that part of the goal of frequent screening is to provide treatment before those risk factors develop. Therefore, Dr. Good opined that D.B.'s vision loss was more likely attributable to "the fact that she wasn't screened and treated timely," not the other risk factors. Further, based on his physical examination of D.B., Dr. Good testified that her visual impairment stems from her ROP, not from any neurological issues arising from D.B.'s prematurity.

Dr. Dale L. Phelps, another expert for the Bustamantes, similarly testified that the doctors'...