Gunn v. McCoy

• Decision Date: 24 March 2016
• Docket Number: NO. 14–14–00112–CV,14–14–00112–CV
• Citation: 489 S.W.3d 75
• Parties: Debra C. Gunn, MD, Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, PLLC, Appellants v. Andre McCoy, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person, Appellee
• Court: Texas Court of Appeals

489 S.W.3d 75

Debra C. Gunn, MD, Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, PLLC, Appellants

v.Andre McCoy, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person, Appellee

NO. 14–14–00112–CV

Court of Appeals of Texas, Houston (14th Dist.).

Substitute Opinion filed March 24, 2016

Jim Hand, Lubbock, TX, Michael C. Feehan, Jeffery T. Nobles, Barbara Hilburn, Houston, TX, for Appellants.

Alexander Klein, III, Houston, TX, for Appellee.

Panel consists of Justices Boyce, Jamison, and Brown.

SUBSTITUTE OPINION

Marc W. Brown

, Justice

On September 13, 2004, when she was 37 weeks pregnant, Shannon McCoy presented at the hospital with severe abdominal pain. Her fetus had died due to placental abruption

, and Shannon was suffering from disseminated intravascular coagulation (DIC)—a blood clotting disorder. Shannon received blood products, including fresh frozen plasma (FFP). She delivered the stillborn baby, received additional blood products, not including FFP, and was transferred to the ICU. Shannon continued to lose blood. In the ICU, Shannon developed tachycardia, and her uterus stopped contracting. Shannon underwent a hysterectomy. Just before the surgery, her heart stopped pumping blood and she went into cardiac arrest. CPR was performed. Shannon suffered brain damage and seizures, was transferred to a neurological ICU, and underwent months of therapy. Since September 14, 2004, Shannon has required around-the-clock care as a quadriplegic.

A jury returned a verdict in favor of Shannon through her husband and guardian, appellee Andre McCoy, in his healthcare liability suit against appellants Debra Gunn, MD, Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, PLLC (together, OGA).¹ The trial court signed a judgment in conformity with the jury's verdict. Gunn and OGA assail the judgment in multiple issues on appeal, challenging: (1) the trial court's granting of McCoy's no-evidence summary judgment on comparative negligence; (2) the legal sufficiency of the evidence to establish that asserted instances of negligent medical treatment proximately caused Shannon's brain injuries

; (3) the legal sufficiency of the evidence of Shannon's past medical expenses; (4) the legal sufficiency of the evidence of Shannon's future medical expenses, along with the trial court's refusal to allow evidence from Gunn's and OGA's life care expert; and (5) the trial court's refusal to submit various instructions in the jury charge. Gunn also argues that OGA's indemnity claim is not ripe.

Because the evidence is legally insufficient to support the full amount awarded for Shannon's future medical expenses, we suggested a remittitur of $159,854.00. See Tex. R. App. P. 46.3

. McCoy has timely filed a remittitur. We therefore modify the trial court's judgment to change the amount of future medical expenses awarded to $7,082,549.00, and affirm the judgment as modified.

I. Factual and Procedural Background

Shannon McCoy, a 35–year–old first-time pregnant woman, was under the prenatal care of Dr. Debra Gunn, an obstetrician and gynecologist (ob/gyn) with OGA. On the morning of September 13, 2004, Shannon went to her 37–weeks prenatal appointment. That same evening, Shannon presented at the Woman's Hospital (Woman's) with severe abdominal pain and lack of fetal movement. Dr. Mark Jacobs, the OGA ob/gyn on call, ordered an ultrasound and discovered that the fetus had died due to placental abruption

. Placental abruption occurs when the placenta prematurely detaches from the uterine wall. Lab tests indicated Shannon had developed DIC, a blood coagulation disorder that puts patients at risk for increased bleeding. DIC can occur as a result of placental abruption. Jacobs informed Gunn. Jacobs also consulted with a maternal-fetal medicine specialist, Dr. Brian Kirshon, who recommended Shannon receive FFP and blood. The nurses documented a verbal order from Jacobs at 2:18 a.m. on September 14 to provide Shannon with two units of FFP and then two units of packed red blood cells (PRBCs). Kirshon hoped Shannon's coagulopathy would resolve postdelivery—his plan was to recheck her coagulation studies and to give her blood products as needed. Kirshon also advised being “on the look out for major postpartum hemorrhage.”

Gunn arrived at the hospital at about 4:00 a.m. on September 14 and took over Shannon's care. Gunn consulted with Kirshon, and they agreed on vaginal delivery. The stillborn baby girl was born at 6:20 a.m. Gunn left Shannon to perform a scheduled C-section on another patient, returning later. The nurses documented a verbal order from Gunn at 7:20 a.m. to provide Shannon with two more units of PRBCs. Lab results at 7:27 a.m. indicated Shannon had experienced significant blood loss and her blood was not clotting normally. The nurses documented a verbal order from Gunn at 9:00 a.m. to provide Shannon with four units of platelets

. Gunn left the hospital at 9:40 a.m. to see patients at her office. The nurses documented another verbal order from Gunn at 10:15 a.m. to provide Shannon with two more units of PRBCs, for a total of six units of PBRCs. However, no verbal order for additional FFP was documented; Shannon received no additional FFP after having received the two units of FFP ordered by Jacobs at 2:18 a.m. Just before 11:00 a.m., Gunn ordered that Shannon be transferred to the ICU. Gunn also ordered Lasix to increase Shannon's low urine output.

At noon, in the ICU, Shannon experienced a large amount of bleeding upon uterine massage

. Shannon's uterus was “boggy,” or not contracting down. At 12:10 p.m., Shannon's pulse rate was measuring over 200 by EKG. Dr. James Collins, the cardiologist in the ICU, diagnosed Shannon's “extremely fast rate” as paroxysmal atrial tachycardia (PAT). By 12:45 p.m, Shannon's uterus remained boggy, she passed another large amount of blood, and she became agitated. Her oxygen saturation level was at 72%, and her pulse and respiration rate were elevated. Lab results at 1:16 p.m. indicated that her blood still was not clotting normally. Gunn returned to Shannon's bedside at 1:28 p.m. Despite medications to help her uterus contract, Shannon had developed uterine atony, which occurs when the uterus can no longer “clamp down” and leads to heavy bleeding. Gunn arranged for a possible hysterectomy and ordered a “blood emergency.”

Shannon entered the operating room just after 2:00 p.m. Upon starting anesthesia

, Shannon went into ventricular fibrillation (v-fib), where her heart was unable to pump blood. The anesthesiologists performed CPR for several minutes. Eventually, Gunn performed the hysterectomy. Shannon experienced seizure activity that evening; an EEG showed severely depressed cerebral function, and Shannon's pH level based on her blood gases indicated she was acidotic resulting from a lack of oxygen.

Shannon was transferred to the neurological ICU at St. Luke's Hospital. Shannon underwent months of rehabilitation at The Institute for Rehabilitation and Research (TIRR). Shannon has profound neurocognitive and physical deficits, and since September 14, 2004, has required 24–hour care.

In July 2006, Shannon's husband Andre McCoy, as her permanent guardian, filed suit against Gunn, Jacobs, OGA, Collins, and Woman's. Jacobs and Woman's settled their claims and were dismissed. Collins was nonsuited.

Before trial, McCoy filed a no-evidence motion for summary judgment as to the affirmative defense of comparative responsibility, arguing that there was no evidence the treating labor and delivery nurses were negligent or that any alleged negligence proximately caused Shannon's brain damage. The trial court held a hearing and granted summary judgment.

The jury returned an 11–to–1 verdict in favor of McCoy as to Gunn's negligence and awarded damages of $10,626,368.98. The award included past medical care expenses of $703,985.98 and future medical care expenses of $7,242,403.00. Pursuant to OGA's election of a dollar-for-dollar settlement credit, which Gunn joined, the trial court applied an offset of $1,206,773.50 in its final judgment. The trial court also determined that OGA was vicariously liable for Gunn's negligence and that OGA was entitled to indemnity from Gunn.

Gunn and OGA argue several issues.² OGA contends: (1) there is no evidence of causation; (2) the trial court should not have granted summary judgment as to the hospital's negligence or should have granted Gunn's and OGA's request for continuance; (3) the court should not have excluded Dr. Helen Schilling's testimony regarding Shannon's future medical expenses; (4) the court should have submitted various jury instructions; and (5) the evidence is legally and factually insufficient to support Shannon's past medical expenses.

Gunn contends: (1) the trial court erred by granting no-evidence summary judgment on comparative responsibility; and (2) the evidence is legally insufficient to support the jury's finding that Gunn's negligence harmed Shannon, the award for Shannon's past medical expenses, and $159,854 of the award for her future medical expenses. Gunn further argues OGA's indemnity claim is not ripe.

II. Analysis

A. Standards of review

In a legal-sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005)

. We “must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. We will only reverse the judgment if: (a) there is a complete absence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. The record...