Grotti v. State

• Decision Date: 17 November 2006
• Docket Number: No. 2-04-406-CR.,2-04-406-CR.
• Citation: 209 S.W.3d 747
• Parties: Lydia H. GROTTI a/k/a Lydia Grotti, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

209 S.W.3d 747

Lydia H. GROTTI a/k/a Lydia Grotti, Appellant, v. The STATE of Texas, State.

No. 2-04-406-CR.

Court of Appeals of Texas, Fort Worth.

November 17, 2006.

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Richardson, Stoops, Richardson & Ward, Gary L. Richardson and Keith A. Ward, Tulsa, Cotton, Schmidt, L.L.P., Brian D. Esenwein, Fort Worth, for Appellant.

Anderson, Smyer & Riddle, L.L.P., Geffrey W. Anderson, Fort Worth, Robert A. Freyer, Jr., Asst. Dist. Atty., Houston, for State.

PANEL A: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

TERRIE LIVINGSTON, Justice.

Pursuant to rule of appellate procedure 50, we have reconsidered our previous opinion on the State's petition for discretionary review. See TEX.R.APP. P. 50. We withdraw our judgment and opinion dated September 14, 2006 and substitute the following primarily to revise the factual sufficiency standard of review to comport with the court of criminal appeals's opinion in Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006), which was handed down after our original opinion issued.

I. INTRODUCTION

A grand jury indicted appellant Lydia H. Grotti ("Grotti"), a former physician at John Peter Smith Hospital ("JPS") in Fort Worth, for the murder of her patient, Lettie McGhee ("McGhee"). The indictment alleged that Grotti murdered McGhee by occluding McGhee's endotracheal tube ("ET tube") with her finger. A jury subsequently acquitted Grotti of murder and manslaughter but convicted her of the state jail felony of criminally negligent homicide and affirmatively found that she used her finger as a deadly weapon. The trial court sentenced Grotti to two years' confinement. Grotti raises seven issues on appeal, including arguments that the evidence is insufficient to demonstrate that McGhee was alive at the time Grotti occluded McGhee's ET tube and that she caused McGhee's death. Whether McGhee was alive when Grotti occluded the ET tube is the critical issue in this homicide prosecution. Because we hold that the evidence is factually insufficient to show that McGhee was alive when Grotti occluded McGhee's ET tube, we reverse the trial court's judgment and remand the case for a new trial.

II. FACTUAL AND PROCEDURAL BACKGROUND

McGhee, a sixty-four-year-old obese woman, visited JPS on the night of December 24, 2000, and into the following day. She complained of constant abdominal pain occurring over the previous three weeks, coughing occurring over the previous two to three weeks, and nausea. JPS staff subsequently conducted a number of exams on McGhee before sending her home on December 25, 2000. The impression from her radiology report indicated "possible mucinous or serous cystadenocarcinoma of an ovary with possible metastases to the liver and chest." In other words, physicians opined that McGhee had metastatic ovarian cancer that had spread to her liver and lungs and to some of her bones.

McGhee returned to the JPS emergency room (the "ER") sometime in the early evening on the following day complaining of a persistent cough. She waited to be treated in the ER after JPS staff appropriately triaged her. Approximately two hours later, McGhee's daughter approached Leigh Taylor, an emergency medical technician ("EMT") working at the ER front desk, and told Taylor that she needed help because something was wrong with her mother. Taylor looked into the waiting room and observed McGhee slumped over in a wheelchair. Taylor determined that McGhee was unresponsive, did not have a detectable pulse, and showed no observable signs of life. With the help of a triage nurse and a male technician, Taylor transported McGhee back to a trauma room within a few minutes and began a "code," which was documented on a "code sheet."¹ The code sheet indicates that McGhee was "found" at 19:45 and that efforts to resuscitate her began at 19:48.² McGhee had suffered a cardiac arrest.³

Taylor, Donald McGraw, M.D., Alan Eli, M.D., Jennifer Lovins, a registered nurse, Kim Short, an EMT, Michelle Martin, a registered nurse, Donna Duclow, a registered nurse, Eva Murray, an ER charge nurse, Christi Bergland, an ER charge nurse, and Dennis Hunt, a respiratory therapist, all participated in the code and immediately began full Advanced Cardiac Life Support ("ACLS") — the performing of cardiopulmonary resuscitation ("CPR"), the delivery of drugs through an IV, intubation, and defibrillation. Specifically, the code team hooked McGhee up to an electrocardiogram monitor at 19:48 to determine her heart rhythm, which was initially identified as ventricular fibrillation ("V-fib").⁴ Dr. Eli intubated McGhee at 19:57 by inserting an ET tube to establish an airway to facilitate McGhee's breathing process. The code team administered defibrillation (electrical shocks) fifteen times over the course of the entire code. This occurred twice at 19:48, once at 19:50 and 19:51, twice at 19:52, once at 20:00, 20:02, and 20:04, twice at 20:08, once at 20:10 twice at 20:12, and once at 20:13. The code team also administered seven doses of epinephrine and multiple doses of lidocaine, atropine, dopamine, and a dose of amniarodone, all of which were intended to stimulate the heart and obtain or raise blood pressure.

McGhee had no detectable blood pressure or pulse and took no spontaneous respirations⁵ for the first twenty-seven minutes of the code, according to the code sheet. McGhee's rhythm was either V-fib, V-tach, or PEA during this period. At 20:08, McGhee's rhythm was "asystole," meaning an absence of any electrical activity in the heart.⁶ At 20:16, the code team palpated a pulse⁷ and detected a heart rate of ninety beats per minute. McGhee established a "sinus" rhythm at 20:18 and was put on a ventilator.⁸

Once McGhee was exhibiting a sinus rhythm and was stabilized to a certain extent, Dr. McGraw called Grotti to consult with her regarding admitting McGhee to the Intensive Care Unit ("ICU").⁹ Grotti arrived at the ER shortly thereafter to assess McGhee and to determine whether she should be transferred to the ICU. McGhee, however, lost a sinus rhythm and a pulse. At 20:34, McGhee's code sheet indicated that her rhythm was PEA and that she did not have a palpable pulse. Dr. McGraw explained that they had been working the code for about forty-five minutes, and Grotti commented that McGhee had "lost any chance at recovery" and that McGhee was either brain dead or that she would probably be pronouncing McGhee brain dead the following morning or within twenty-four hours. Grotti concluded that McGhee was not stable enough for transfer to the ICU, and she returned to the ICU with instructions to call her if McGhee became stable.

Dr. McGraw continued the code after Grotti returned to the ICU. McGhee once again regained a sinus rhythm and a palpable pulse with a heart rate of ninety-seven beats per minute. Dr. McGraw summoned Grotti a second time to return to the ER and assess McGhee for admission to the ICU. Shortly before 20:50, Grotti returned and assumed care of McGhee, and Dr. McGraw left the trauma room to attend to other patients.

Grotti assessed McGhee. McGhee still did not have a blood pressure, and she did not have a radial or femoral pulse. Grotti did, however, detect a carotid pulse, but she described it as "thready"¹⁰ before announcing to the code team that it had "gone away." Grotti ended, or "called," the code and discontinued the IV, disconnected the ventilator, and pronounced McGhee dead at 20:50 because, according to Grotti, McGhee had lost a pulse, had no spontaneous respirations, and had no blood pressure. The code sheet at this time indicated that McGhee had a "brady"¹¹ rhythm, a palpable pulse, a heart rate in the sixties, no blood pressure, and no respirations. The code had lasted for just over sixty minutes.

Immediately after Grotti called the code, Nurse Lovins observed McGhee's chest "rising and falling," saw condensation in the ET tube, and thought that McGhee was "breathing." Taylor, Nurse Martin, and Short also observed McGhee's chest "rising and falling" and thought that McGhee was "breathing." Grotti, however, explained that the respirations were "agonal" and testified that McGhee made no attempt to breathe after several minutes. According to Grotti,

[t]he air from the ventilator had pushed air and the patient's lungs came out and the patient did nothing after that. . . . She did not make any attempt to breathe in. The air came out, it was like (gesturing) and then nothing.

Grotti reported McGhee's death to the medical examiner at 21:00 and called Life Gift at approximately 21:20.¹² She requested permission from the medical examiner to remove McGhee's ET tube because, in her opinion, the ET tube was prolonging McGhee's "agonal activity" and removal of the ET tube would naturally collapse McGhee's airway tissues inward, thus ending the agonal respirations. The medical examiner denied her permission to remove the ET tube.

Grotti then spoke to members of McGhee's family briefly before returning to the ER. There, Nurse Martin told Grotti that McGhee was "breathing," so Grotti examined McGhee once again. McGhee did not have a pulse, she did not have any heart sounds, and she had fixed eyes and dilated pupils and nonresponsive corneal reaction, which, in Grotti's opinion, indicated neurological dysfunction, particularly in the upper brain stem and lower midbrain. Grotti also examined McGhee for breath sounds because "she was making respiratory effort" and because there was condensation in McGhee's ET tube. According to Grotti, McGhee was getting air into her central airways but not into her lungs. She explained to Nurse Martin that McGhee had been hyperoxygenated and that her brain stem was continuing to fire, causing muscle contractions to open up her airway and move air. Grotti opined that McGhee was cardiopulmonarily dead...