Mills v. Angel

• Decision Date: 02 November 1998
• Docket Number: No. 06-96-00086-CV,06-96-00086-CV
• Citation: 995 S.W.2d 262
• Parties: (Tex.App.-Texarkana 1999) JAMES DAVID MILLS AND BRENDA MILLS, INDIVIDUALLY AND AS NEXT FRIEND OF LAUREN MICHELLE MILLS AND JESSICA DANIELLE MILLS, MINOR CHILDREN, Appellants V. JORGE ANGEL, M.D., BUFORD WELLS, M.D., BAYSHORE MEDICAL CENTER, INC. AND PASADENA BAYSHORE HOSPITAL, INC., Appellees Submitted:
• Court: Texas Court of Appeals

Page 262

995 S.W.2d 262 (Tex.App.-Texarkana 1999)

JAMES DAVID MILLS AND BRENDA MILLS, INDIVIDUALLY AND AS NEXT FRIEND OF LAUREN MICHELLE MILLS AND JESSICA DANIELLE MILLS, MINOR CHILDREN, Appellants

V.

JORGE ANGEL, M.D., BUFORD WELLS, M.D., BAYSHORE MEDICAL CENTER, INC. AND PASADENA BAYSHORE HOSPITAL, INC., Appellees

No. 06-96-00086-CV

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted: November 2, 1998

Decided: June 10, 1999

On Appeal from the 152nd Judicial District Court Harris County, Texas Trial Court No. 94-013852

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

Ben Z. Grant, Justice

O P I N I O N

Opinion by Justice Grant

David and Brenda Mills and their daughters, Lauren and Jessica Mills, appeal an instructed verdict granted in favor of Bayshore Medical Center, Inc. and Pasadena Bayshore Hospital, Inc.¹ (Hospital), in their direct corporate liability suit against the Hospital.

The key issue before us on appeal is the appropriate standard of care a hospital owes its patients in its administrative role of overseeing the practice of physicians who have staff privileges to practice in the hospital.

The Millses contend the trial court erred in granting a directed verdict in favor of the Hospital on their direct corporate liability. They argue (1) expert medical testimony concerning the doctors' negligence was sufficient to support their bases of direct corporate liability against the Hospital, (2) expert administrative or ministerial testimony is not always required when a hospital is sued for negligence under direct corporate liability, and (3) if expert administrative testimony was required to support their direct corporate liability claims against the Hospital, it was not required in the instant case because the Hospital's negligence was within the common knowledge of laymen.

David and Brenda Mills and their two children filed suit against Dr. Jorge Angel, Dr. Buford Wells,² and the Hospital for injuries David Mills suffered during a cervical laminectomy in June 1993. The Millses sued the Hospital on two theories: (1) vicarious liability for the alleged negligence of the nursing staff during the surgery, and (2) direct corporate liability for the alleged negligence of the Hospital. The trial court granted a directed verdict against the Millses and in favor of the Hospital on the Millses' direct corporate liability claims. Trial was to a jury, and the jury found there was no negligence by the nursing staff of the Hospital that proximately caused injury to David Mills. The Millses do not appeal this finding. The Millses appeal the directed verdict granted in favor of the Hospital on their direct corporate liability claims.

David Mills worked as a profusionist at the Hospital, running a heart and lung machine during surgical procedures. On January 6, 1992, David went to Dr. Jorge Angel, a surgeon with staff privileges at the Hospital, complaining of pain in his left shoulder and weakness in his left hand. David had a herniated disk near the sixth vertebra at the base of his neck. Dr. Angel recommended David undergo a surgical procedure called a cervical laminectomy. During a cervical laminectomy, the surgeon shaves off part of the bone in the neck to relieve pressure on the spinal cord. David asked Dr. Angel to perform the surgery and asked Dr. Buford Wells, who also had staff privileges at the Hospital, to be his anesthesiologist.

In January 1992, Dr. Angel and Dr. Wells performed the surgery. The surgery was successful and relieved David's symptoms. In May 1993, the symptoms returned, and David again consulted Dr. Angel. Dr. Angel recommended another cervical laminectomy, believing David had possibly regenerated some disk material. David sought a second opinion from another neurosurgeon, who also recommended a laminectomy. Again, David asked Dr. Wells to administer the anesthetic and Dr. Angel to perform the surgery.

David's second surgery took place in June 1993. The surgery was performed while David was in a sitting position with his head slightly flexed. Dr. Angel chose a horseshoe headrest and adhesive tape to stabilize David's head. Both Dr. Angel and Dr. Wells positioned David's head in the headrest. David awoke from surgery without any feeling in his arms or legs. The surgical nurse notified Dr. Angel and Dr. Wells that David could not move his arms or legs. Dr. Angel performed another surgery that evening, but found nothing to explain David's paralysis. David apparently suffered from a reduction in blood flow to his spinal cord, death of the cells in his spinal cord. David is now a quadriplegic. Neither doctor has ever had this type of surgery result in paralysis.

The Millses sued the Hospital on five bases of direct corporate liability: (1) policies and procedures--in failing to formulate or enforce policies and procedures to ensure adequate peer review and quality assurance of its medical staff; (2) equipment--in providing antiquated surgical and anesthesia equipment; (3) continuing medical education--in failing to require its medical staff to attend continuing medical education; (4) peer review--in failing to conduct regular peer review to detect surgical and anesthesia problems in the operating room; and (5) credentialing--in negligently credentialing or recredentialing the defendant doctors and in extending surgical and anesthesia privileges, in failing to limit the privileges of the defendant doctors when they did not demonstrate competence, and in failing to require that modern surgical and anesthesia equipment be used in its operating rooms.

A directed verdict under Rule 268 of the Texas Rules of Civil Procedure³ is proper only under limited circumstances, e.g., where (1) a specifically indicated defect in the opponent's pleading makes it insufficient to support a judgment; or (2) the evidence proves conclusively the truth of fact propositions which, under the substantive law, establish the right of the movant or negate the right of his opponent to judgment; or (3) the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the opponent to be entitled to judgment.⁴ The trial court may properly withdraw a case from the jury and instruct a verdict if there is no evidence to support a material issue.⁵

When reviewing a directed verdict, this Court views the evidence in the light most favorable to the party against whom the verdict was rendered and disregards all contrary evidence and inferences.⁶ If the Court finds that there is any evidence of probative value which raises a material fact issue, the judgment must be reversed and the case remanded for the jury's determination of that issue.⁷

The Millses argue the trial court erred in directing a verdict in favor of the Hospital because the law does not require expert testimony on a hospital's negligence under their bases of direct corporate liability. Specifically, the Millses contend expert testimony on the Hospital's negligence was not necessary when the jury had already heard expert testimony that Dr. Wells and Dr. Angel were negligent. In essence, the Millses are arguing that the showing of negligence on the part of the doctors is enough under the facts of the present case to also hold the Hospital liable for David's injuries. The Hospital contends that the Millses failed to offer any evidence, expert or otherwise, on the Hospital's standard of care, or that the standard was breached so as to proximately cause David's injuries.

The Millses also assert the jury could have determined whether the Hospital was negligent because their bases of direct corporate liability involved only nonmedical, administrative, and/or routine hospital care that were within the jury's common knowledge. We agree that the facts and circumstances of the particular case will dictate whether expert testimony is necessary or whether the alleged negligence is within the jury's common knowledge. Before answering whether the facts of this case required expert testimony, we will first examine the law that explains when expert testimony is required.

To prevail on a medical negligence cause of action, the plaintiff must prove (1) a duty by the physician/nurse/hospital to act according to applicable standards of care;⁸(2) a breach of the applicable standard of care; (3) an injury; and (4) a causal connection between the breach of care and the injury.⁹ Under Texas law, a hospital may be liable independently of the negligence of its physicians or employees. Hospital liability under this direct theory of liability arises from the negligent performance of a duty the hospital owes directly to the patient.¹⁰ Among these direct duties are (1) a duty to provide its patients with appropriate and usable medical equipment;¹¹ (2) a duty to keep its premises in a reasonably safe condition;¹² (3) a duty not to negligently allow termination of medical care;¹³ (4) a duty to use reasonable care in formulating the policies and procedures that govern its medical staff and nonphysician personnel;¹⁴ 10 and (5) a duty to exercise reasonable care ein the selection of its medical staff and to periodically monitor and review the medical staff's competence.¹⁵

The test for determining whether a hospital has a duty of care and whether that duty has been breached is what an ordinary hospital would have done under the same or similar circumstances.¹⁶ The medical standard of care is the threshold issue that a plaintiff must establish before the fact finder determines if the defendant deviated from the standard of care to a degree that constitutes negligence.¹⁷ As a general rule, expert testimony is required to establish the governing standard of care and to determine whether the standard has been breached.¹⁸ Expert testimony is generally required when the underlying issue involves the performance of medical procedures¹⁹ because the...