Curtis v. Urbina

• Court: Texas Court of Appeals
• Writing for the Court: Memorandum Opinion by Chief Justice Morriss
• Decision Date: 30 August 2019
• Docket Number: No. 06-19-00028-CV,06-19-00028-CV
• Citation: Curtis v. Urbina, No. 06-19-00028-CV (Tex. App. Aug 30, 2019)
• Parties: WILLIAM C. CURTIS AND TINA CURTIS, Appellants v. JAMES HUMBERTO URBINA, M.D., AND CHRISTUS HEALTH ARK-LA-TEX D/B/A CHRISTUS ST. MICHAEL HEALTH SYSTEM, Appellees

WILLIAM C. CURTIS AND TINA CURTIS, Appellants v. JAMES HUMBERTO URBINA, M.D., AND CHRISTUS HEALTH ARK-LA-TEX D/B/ACHRISTUS ST. MICHAEL HEALTH SYSTEM, Appellees

No. 06-19-00028-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: August 8, 2019

August 30, 2019

On Appeal from the 5th District Court Bowie County, Texas

Trial Court No. 12C1341-005

Before Morriss, C.J., Stevens and Carter,^* JJ.

Memorandum Opinion by Chief Justice Morriss

Dissenting Opinion by Justice Carter

MEMORANDUM OPINION

The medical malpractice claims of William C. Curtis and Tina Curtis against Christus Health Ark-La-Tex d/b/a Christus St. Michael Health System (Christus) were rejected by the trial court's directed verdict, and they appeal. Because the Curtises failed to challenge all grounds of the trial court's directed verdict in their opening brief, they have forfeited any alleged error.

In September 2010, William was working outside in the heat when he suddenly "felt a little woozy" and experienced hearing loss. William, who had been in administration in the healthcare field and was at the time employed by Neurological Associates of Texarkana, believed that he may have suffered a stroke. He asked his son, who worked at Christus, to take him to Christus' emergency room. Once there, William was seen by a teleneurologist who diagnosed him with benign positional vertigo (BPV), expressed doubt as to whether William had had a stroke, and requested imaging that ultimately revealed the absence of stroke, but showed that William had two vertebral arteries that were "very small." The teleneurologist also recommended consultation with an "[i]n-house" neurologist, if available.

The following day, William was seen by James Humberto Urbina, M.D., a doctor of internal medicine—not neurology. Urbina testified that he decided not to consult with an on-site neurologist before manipulating William's neck in applying Dix-Hallpike and Epley maneuvers, which are designed to diagnose and treat BPV. Immediately after Urbina performed these maneuvers, described by the Curtises as "violent," William's blood pressure crashed, and he vomited and experienced double vision. After an evaluation by Dr. Khalid Malik, a neurologistconnected to Wadley Hospital (Wadley), the other local hospital, William was diagnosed with a brain stem stroke.

The Curtises sued Urbina¹ and Christus for medical negligence. With respect to Urbina, the Curtises alleged that his failure to consult an on-site neurologist and performance of the neck maneuvers, which were allegedly contraindicated given his stroke symptoms and the imaging revealing his small vertebral arteries, fell below the standard of care that would be used by prudent physicians of internal medicine presented with the same or similar circumstances. The Curtises claimed that Urbina's performance of the neck maneuvers proximately caused William's stroke and resulting damages.

The Curtises also asserted two causes of action for negligence against Christus. In one claim, the Curtises alleged that Christus was directly negligent "for not arranging for in-person neurology services for its stroke program," that an "in-person" neurologist would have prevented the performance of the allegedly-contraindicated neck maneuvers, and that William would not have suffered the damages caused by Urbina resulting from the neck maneuvers. The Curtises' second claim alleged Christus was negligent for "failing to inform recipients of its marketing efforts that . . . it did not actually have an on-site neurology service"; but-for this false advertising, William would have gone to Wadley; Wadley had an on-site neurologist; and Wadley's neurologist would have prevented the performance of the neck maneuvers, which proximately caused William's injuries. The marketing materials the Curtises referenced were Christus' CEO reports touting its certification as a primary stroke center sent to Neurology Associates of Texarkana.William testified he was misled into believing that Christus had an on-site neurologist available at all times because the reports stated that (1) Christus had "[a]n Acute Stroke Response Team-available 24/7/365," (2) "[t]he CSM Stroke Team [wa]s led by neurologist Nancy Griffin, M.D., who serves as the Medical Director," (3) "[c]omplementing this care is medical expertise access to recognized experts in the field of neurology via teleneurology," and (4) "[t]eleneurology, available 24/7/365, serves as an asset to our Stroke Team and complements patient care provided by the neurologist."²

At trial, when asked if there was an on-site neurologist, Urbina testified that Christus "did not provide one." The Curtises also testified that Urbina told them Christus did not have an on-site neurologist on the day the neck maneuvers were performed. On the day the maneuvers were performed, Malik went to Christus to evaluate William "[b]ecause they needed a live neurologist" and "really needed help." However, during Christus' case-in-chief, Griffin testified that she looked at her calendars from September 2010, which she did not bring to trial, and testified that she must have been available because she was not out of town and was otherwise available for neurological consultation "24/7."

After Christus presented this evidence, it moved for directed verdict on each element of Urbina's negligence claims. Christus argued that the two expert witnesses presented by the Curtises at trial, William and Malik, did not present evidence of the standard of care for hospital advertising and also failed to establish that the standard of care applicable to Christus required it to provide an on-site neurologist. On the issue of proximate cause, Christus argued there was noevidence that it could have foreseen (1) that William would be injured as a result of its advertising, (2) that Urbina would not know of Griffin's availability, or (3) that Urbina would choose not to consult an on-site neurologist.

In granting Christus' motion for directed verdict, the trial court made the following specific findings:

The negligence alleged against [Christus] was that there was no neurologist available to be consulted. The evidence in this case that's been presented, the Court finds there can only be one reasonable conclusion drawn from that, and that is that there was a neurologist that was available from [Christus]. Why that neurologist was not called, why Dr. Urbina may or jury may have some evidence that says that they can consider that Dr. Urbina may have said there was no neurologist, but whether or not Dr. Urbina decided to call a neurologist, was aware that there was a neurologist to call, all of that would be a fact issue for the jury to decide, but that is not -- if anything, that's an intervening fact or an intervening cause with regard to [Christus'] liability in this matter. The Court's going to find that there is no cause in fact, that there is a problem with proximate cause. Court's going to grant directed verdict for [Christus] . . . .

Court's going to find that there is no causal link [on the negligent advertising claim]. The fact that the -- even if the misrepresentations were negligent, even assuming that they were negligent, all that did was get him to [Christus] . . . as opposed to Wadley, and there's still no causal relationship between being at [Christus] versus Wadley in the injury that has occurred. . . . The Court's going to grant directed verdict.

The Curtises' claims against Urbina were presented to a Bowie County jury, which determined that Urbina's negligence, if any, did not proximately cause William's injury. The trial court entered a take-nothing judgment on the Curtises' claims against Urbina, and the Curtises do not appeal that portion of the judgment.³ However, they appeal the directed verdict rejecting their claims against Christus.

"On appeal, the appellant must challenge all independent grounds supporting the judgment." Shirley v. Butcher, No. 06-16-00089-CV, 2017 WL 1538164, at *3 (Tex. App.—Texarkana Apr. 27, 2017, pet. denied) (mem. op.) (citing Gross v. Carroll, 339 S.W.3d 718, 723 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.)). "If he does not do so, the appellate court will affirm the judgment of the trial court." Id. (citing Gross, 339 S.W.3d at 723; Britton, 95 S.W.3d at 681); see Taylor v. Medtox Diagnostic, Inc., No. 06-17-00032-CV, 2017 WL 4818623, at *5 (Tex. App.—Texarkana Oct. 26, 2017, pet. denied) (mem. op.); Oliphant Fin. L.L.C. v. Hill, 310 S.W.3d 76, 77-78 (Tex. App.—El Paso 2010, pet. denied). This rule applies to directed verdicts. See Rush v. Ace Am. Ins. Co., No. 01-18-00402-CV, 2019 WL 2932846, at *6 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet. h.) (mem. op.); Barton v. Garza, No. 04-14-00207-CV, 2015 WL 1393428, at *1 (Tex. App.—San Antonio Mar. 25, 2015, no pet.) (mem. op.); Woodrum v. Long, 527 S.W.2d 281, 283 (Tex. App.—Austin 1975, no writ).

In their appellate brief, the Curtises argue that the trial court erred in granting the directed verdict because there was conflicting evidence as to whether an on-site neurologist was available at the time of William's hospitalization and whether Christus misrepresented that its stroke centerwas staffed with an on-site neurologist. These arguments address the negligence element of breach. While the brief recites the petition's claims that Christus' alleged negligence proximately caused William's injuries, the brief fails to adequately address the trial court's directed verdict on the element of proximate cause.⁴

"Proximate causation embraces two concepts, both of which must be present: the cause in fact of an event and the foreseeability of that event." Hall v. Huff, 957 S.W.2d 90, 96 (Tex. App.—Texarkana 1997, pet denied). "'Cause in fact' is an act or omission that was a substantial factor in bringing about the injury, and without it,...