Hamilton v. Wilson

• Decision Date: 28 March 2008
• Docket Number: No. 07-0164.,07-0164.
• Parties: Nadine HAMILTON, Nee Nadine Lambert, Petitioner, v. Selma P. WILSON, M.D., Respondent.
• Court: Texas Supreme Court

249 S.W.3d 425

Nadine HAMILTON, Nee Nadine Lambert, Petitioner, v. Selma P. WILSON, M.D., Respondent.

No. 07-0164.

Supreme Court of Texas.

March 28, 2008.

Rehearing Denied May 2, 2008.

Fred Bowers, Forrest Bowers, Bowers Law Firm, Lubbock, TX, for Petitioner.

Jim Hund, Linda Ruth St. Clair Russell, Hund & Harriger, LLP, Lubbock, TX, for Respondent.

PER CURIAM.

The trial court granted a provider's noevidence summary judgment motion in a health care liability suit, and the court of appeals affirmed. Because genuine issues of material fact preclude summary judgment, we reverse the court of appeals' judgment and remand this case to the trial court for further proceedings.

On September 16, 2003, eighty-three-year-old Nadine Hamilton was admitted to Covenant Lakeside medical center in Lubbock for back surgery. Prior to the procedure, anesthesiologist Dr. Selma Wilson was summoned to intubate Hamilton and administer general anesthesia. Dr. Wilson attempted the intubation with a 7.5mm endotracheal tube, encountered resistance, and then inserted the tube 1-2cm farther. When that tube did not reach the depth she expected, she removed it and successfully inserted one that was 7.0mm in diameter. After the surgery, a recovery room nurse extubated Hamilton and suctioned her throat. Hamilton later complained of chest pain, and x-rays indicated that air was entering Hamilton's chest cavity. It was then discovered that Hamilton had suffered a tear in her esophagus. That night, Hamilton was transferred to another hospital where she successfully underwent emergency corrective surgery by Dr. Donald Robertson, a thoracic surgeon. Hamilton filed a health care liability claim against Dr. Wilson, alleging that she negligently tore Hamilton's esophagus during intubation by forcing the endotracheal tube into her esophagus after encountering resistance.

Dr. Wilson moved for summary judgment, arguing that there was no evidence that she was negligent or that she caused the esophageal tear. Hamilton responded with portions of the depositions of the designated testifying experts (Dr. Robert Finnegan on behalf of Hamilton, Dr. Byron Brown for Dr. Wilson), her medical records, and Dr. Wilson's own deposition. Dr. Finnegan testified that the intubation probably caused the tear in Hamilton's esophagus, and Dr. Wilson and Dr. Brown admitted this was possible. The trial court granted the motion, and the court of appeals affirmed. 223 S.W.3d 535. Hamilton argues that the court of appeals erred in concluding that there was no evidence that Dr. Wilson negligently tore Hamilton's esophagus. We agree.

In a no-evidence summary judgment motion, the movant contends that there is no evidence of one or more essential elements of the claims for which the non-movant would bear the burden of proof at trial. TEX.R. CIV. P. 166a(i). The trial court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id. The respondent is "not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements." TEX.R. CIV. P. 166a(i) cmt. — 1997. We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005).

In applying this standard, the court of appeals noted that, to recover for medical malpractice, the complainant must prove: 1) the physician had a duty to act according to a certain standard, 2) she breached that standard, and 3) the breach proximately caused the complainant to sustain injury. 223 S.W.3d at 537; see IHS Cedars Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). After reviewing the acts allegedly performed by Wilson, the court of appeals concluded that the mere possibility and "belief" by Dr. Finnegan that Wilson inserted an endotracheal tube into Lambert's esophagus was "not evidence that proves the questioned fact." 223 S.W.3d at 538.

However, Hamilton was not required to prove the facts as she alleged them. Rather, she was only required to provide evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. After examining the evidence on each of the required elements, we conclude that she met this burden.

In his expert report, Dr. Finnegan set out the general standard of care for an anesthesiologist placing an endotracheal tube. She must: a) establish and maintain control of the patient's airway during general anesthesia; b) establish this control in a safe manner; c) promptly recognize and document...