Medina v. Hart

• Decision Date: 05 July 2007
• Docket Number: No. 13-04-436-CV.,13-04-436-CV.
• Citation: 240 S.W.3d 16
• Parties: Marelyn MEDINA, M.D., Appellant, v. Michael B. HART, Appellee.
• Court: Texas Court of Appeals

240 S.W.3d 16

Marelyn MEDINA, M.D., Appellant, v. Michael B. HART, Appellee.

No. 13-04-436-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

July 5, 2007.

Rehearing Overruled November 15, 2007.

Thomas F. Nye, Vidaurri, Lyde, Gault & Quintana, Corpus Christi, for appellant.

Keith C. Livesay, Ricardo A. Garcia, McAllen, for appellee.

Before Justices RODRIGUEZ, GARZA, and BENAVIDES.

OPINION

Opinion by Justice BENAVIDES.

This appeal arises from a medical malpractice lawsuit that was tried to a jury verdict. Appellee, Michael Hart, brought suit against appellant, Marelyn Medina, M.D., for injuries he sustained during surgery to remove a kidney stone. The jury found Dr. Medina negligent and awarded damages. On appeal, Dr. Medina argues that the trial court erred in admitting expert testimony from a witness who was not qualified under former article 4590i of the Medical Liability and Insurance Improvement Act of Texas.¹ Dr. Medina claims that without this testimony, there was no evidence that she breached the standard of care and that this breach caused appellee's injury. We affirm.

I. BACKGROUND

Hart is a missionary in Veracruz, Mexico. In November 2001, he returned to the United States to seek treatment for kidney stones. His wife, Teresa Hart, contacted Dr. Medina, who agreed to see him.

Dr. Medina examined Hart and determined that a kidney stone was blocking the tubes to his left kidney. At first, Dr. Medina recommended a non-invasive surgery² to break the kidney stone apart, but after complications arose, she determined that invasive surgery was required.³

Hart was admitted to Rio Grande Regional Hospital for surgery on November 16, 2001. He was placed under general anesthesia. Dr. Medina testified that prior to the surgery, Hart was positioned on the operating table with his right side down. His left side was exposed upward so that Dr. Medina could access the left kidney.

Dr. Medina testified that she supervised the placement of cushioning devices used in positioning Hart for surgery. Hart's right arm was raised above his head, and a cushioning device was placed in his right axilla, or his right underarm, to prevent nerve damage to his shoulder and arm. Dr. Medina testified that she personally placed an IV bag—a bag primarily used to infuse liquids into a person's body through the veins—under Hart's right arm as a cushioning device. Although Dr. Medina testified that she often used IV bags for this purpose, the parties disputed whether this was a proper use. Dr. Medina performed the surgery but was unable to remove the kidney stone.

After surgery, when Hart awoke, he began to complain of pain underneath his right arm. Upon inspection, nurses discovered blisters on Hart's right axilla, where the IV bag had been placed for cushioning. After several visits to Dr. Medina over the following weeks, Dr. Medina referred Hart to Rafael Avila, M.D. Dr. Avila diagnosed Hart's condition as second and third degree burns under his right arm. Dr. Avila recommended and performed a skin graft after removing necrotic, or dead, tissue from the area. Hart subsequently lost feeling in that area, is unable to sweat, and suffered other complications from the burns.

Hart filed a medical negligence suit on August 1, 2003 under former article 4590i. He alleged that Dr. Medina negligently used the IV bag as a positioning device, resulting in second and third degree burns to Hart. Hart designated Phillip Diggdon, M.D. as his expert witness to testify about the standard of care, breach, and causation.

At his deposition, Dr. Diggdon opined that Dr. Medina bore ultimate responsibility for positioning Hart during surgery. He testified that the standard of care was to safely place a positioning device under the right axilla during the surgery. Dr. Diggdon testified that Dr. Medina breached the standard of care for positioning Hart during surgery by using a "red hot" IV bag to cushion Hart's right axilla, which caused Hart's second and third degree burns.

After this deposition, Dr. Medina filed a motion to strike Dr. Diggdon as Hart's expert. Dr. Medina claimed that Dr. Diggdon was not qualified to testify under former article 4590i, section 14.01. Specifically, Dr. Medina argued that Dr. Diggdon was not practicing medicine at the time of the injury or at the time of his testimony because Dr. Diggdon retired from active practice approximately one month before Hart's operation. Additionally, Dr. Medina argued that Dr. Diggdon was unqualified because he was not a burn expert. Dr. Medina did not ask the trial court to dismiss the case—rather, she only requested that the trial court strike Dr. Diggdon as Hart's expert.⁴

In response, Hart filed a supplemental affidavit from Dr. Diggdon. It recited Dr. Diggdon's qualifications and stated that Dr. Diggdon had been serving as a consulting physician since closing his practice:

I am a board certified urological surgeon with 38 years experience in active patient practice. My medical training and background encompasses all aspects of my patient's care beginning with safe entry into the operating suite, patient positioning to safeguard from passive injury and meticulous surgical preparation including the performance of procedures such as the pylolithotomy made the basis of this matter. Approximately one month prior to the date of this incident, I had closed my practice. However, at that time and continuing to the present, upon the request of my peers, I have continued to serve as a consulting physician to those physicians who provide direct patient care in my field of expertise. Additionally, I have continued to update my medical education through attending conferences detailing new procedures and techniques.

The trial court held a hearing on the motion to strike. Dr. Medina objected to Dr. Diggdon's affidavit on the grounds that it was untimely. The trial court did not rule on this objection. Although Dr. Medina represents on appeal that she objected to the affidavit as conclusory because it did not detail with whom Dr. Diggdon had consulted, the record does not reflect that such an objection was made. The trial court denied Dr. Medina's motion to strike Dr. Diggdon as Hart's expert. The case then proceeded to trial.

At trial, Dr. Diggdon testified by video as Hart's expert, and Dr. Medina re-urged her objection to his qualifications. The trial court again overruled Dr. Medina's objection and allowed Dr. Diggdon to testify by video deposition.

Dr. Medina was questioned extensively by both sides at trial. She stated that Rio Grande Regional Hospital policy required her, as the surgeon, to properly assess her patient for positioning needs and have positioning devices readily available. She also admitted that it was her responsibility to make sure that Hart was not going to be injured as a result of being on the operating table and unconscious for the duration of the surgery:

Q: I mean, you've got—you as a doctor having knowledge got [sic] to take the time and the effort to make sure that he is not going to be injured as a result of just being on the table and unconscious for whatever length of time that the surgery takes, true?

A: True.

Dr. Medina's attorney elicited an admission from Dr. Medina that placing a hot IV bag under someone's body would be a breach of the standard of care:

Q: All right. So there's no question about this. Do we need a paid expert from Oklahoma to come in and tell us that you shouldn't put a hot bag, a red hot bag underneath a patient's armpit? I mean, would you agree that that shouldn't be done?

A: That shouldn't be done, sir.

She testified that Dr. Avila diagnosed Hart's injury as a burn, and although she initially disagreed with this diagnosis, she stated at trial that "[a]t this time I would say that [Hart] suffered a burn." She testified that Hart's burn was in the same location as the IV bag and approximately the same size. Although she disputed whether the bag was hot when she placed it under Hart's arm, Dr. Medina testified that regardless of the heat source, the IV bag that she placed under Hart's arm was warm and caused Hart's burn:

Q: Dr. Medina, regardless of the heat source, it was the IV bag that became warm and burned Mr. Hart, regardless of the heat source, correct?

A: That is the what the working diagnosis is.

Q: That is—that is the only thing that injured Mr. Hart was a hot IV bag from some heat source, correct?

A: I would assume, yes.

Q: Okay. That would be fact, wouldn't it? Was there anything else under his armpit than this IV bag?

A: The only thing there that I know of was the bag.

Q: So therefore regardless of the heat source it was an IV bag that caused injury to Mr. Hart during the operation?

A: I would assume that is.

Q: And it was you who put the IV bag there?

A: That is correct, sir.

The parties' main dispute at trial was over how the IV bag became heated. Dr. Medina denied that the bag was heated when it was handed to her before she placed it underneath Hart's arm. She could not remember whether it was wrapped in a towel when it was handed to her, but if so, she testified that she would have removed the towel prior to placing it under Hart. She testified that she touched the bag, and it was not hot. Dr. Medina theorized that it was possible that the bag was heated after being placed under Hart's arm.

Cesar Guerra, the circulating nurse on duty at the time of Hart's surgery, testified that the IV bag was wrapped in a surgical towel prior to being placed under Hart's arm. He testified that there was an IV bag-warmer outside the operating room that was often used to heat IV fluids in the bags prior to being administered to a patient. Although he testified that the IV bag was not taken off a warmer before Dr. Medina positioned it, he had no personal knowledge of whether the IV bag was previously warmed.

Teresa Hart testified that Guerra told her that the IV bag had been heated and then wrapped in a towel...