Pratho v. Zapata, 2-03-051-CV.

• Citation: 157 S.W.3d 832
• Decision Date: 03 February 2005
• Docket Number: No. 2-03-051-CV.,2-03-051-CV.
• Parties: Scott Mason PRATHO, M.D., Appellant and Appellee, v. Lupe ZAPATA, Individually and as Next friend for Sabrina Zapata and Gregory Zapata, and as Heir or Representative of the Estate of Reynaldo Zapata, Deceased, Appellee and Appellant.
• Court: Court of Appeals of Texas

157 S.W.3d 832

Scott Mason PRATHO, M.D., Appellant and Appellee, v. Lupe ZAPATA, Individually and as Next friend for Sabrina Zapata and Gregory Zapata, and as Heir or Representative of the Estate of Reynaldo Zapata, Deceased, Appellee and Appellant.

No. 2-03-051-CV.

Court of Appeals of Texas, Fort Worth.

February 3, 2005.

Cook & Roach, L.L.P., Robert M. Roach Jr., Robert B. Dubose, and Sean R. Cox, Houston, for Appellant Appellant & Appellee.

Morgan & Weisbrod, L.L.P., Les Weisbrod, and William A. Newman, Dallas, for Appellee & Appellant.

Panel A: CAYCE, C.J.; WALKER and McCOY, JJ.

OPINION

BOB McCOY, Justice.

Appellant Scott Mason Pratho, M.D. appeals from a judgment rendered on a jury verdict awarding damages to the survivors of his deceased patient, Reynaldo Zapata, after Dr. Pratho failed to diagnose and treat Zapata's heart condition. Lupe Zapata also appeals the trial court's judgment notwithstanding the verdict invalidating the jury's award of damages for pain and suffering sustained by Zapata before his death. Because we hold that Mrs. Zapata produced legally sufficient evidence of proximate cause, and because we further hold that she established standing to sue on behalf of Zapata's estate at the time of trial, we will affirm the trial court's judgment in part and reverse in part.

Forty-nine-year-old Reynaldo Zapata died at home of a heart attack on May 27, 1997. In the two weeks before his death, Zapata had been evaluated and treated by two emergency room physicians at Harris Methodist Southwest Hospital and a family practitioner, all of whom failed to diagnose Zapata's heart problem: unstable angina. Zapata was first seen by emergency room physician Brett Landon Cochrum, M.D., at Harris Methodist on May 19, 1997, where he complained of a burning throat and tingling in his right arm. Dr. Cochrum concluded that Zapata was suffering pain from an upper respiratory infection and treated him accordingly.

Zapata returned to the emergency room the next day, May 20, 1997, where he was seen by Dr. Pratho. Dr. Pratho's assessment was that Zapata suffered from "[n]onspecific neck pain possibly related to cervical disc disease." Dr. Pratho prescribed Zapata pain medications and steroids, placed his neck in a soft cervical collar, and directed him to follow up with his family practitioner in "the next available appointment for reevaluation and possible work-up."

The following day, May 21, 1997, Zapata was seen by John E. Staniland, M.D., the partner of Zapata's regular family doctor. Dr. Staniland diagnosed Zapata with "musculoskeletal pain radiating from the neck." Dr. Staniland prescribed a narcotic pain medication, ordered an x-ray of Zapata's neck, and referred Zapata to a neurologist. Zapata suffered a heart attack and died six days later.

Zapata's widow, on behalf of herself, her two children fathered by Zapata,¹ and Zapata's estate, sued Harris Methodist and the three doctors,² alleging that the doctors' failure to diagnose and treat Zapata's heart condition proximately caused Zapata's death and ensuing damages to his wife and children. After Mrs. Zapata settled during trial with Harris Methodist, Dr. Cochrum, and Dr. Staniland, the trial court submitted her claims against Dr. Pratho to the jury. The jury found Dr. Pratho negligent and further found that 30% of the negligence that caused Zapata's death was attributable to Dr. Pratho.

I. DR. PRATHO'S APPEAL

On appeal, Dr. Pratho argues that the judgment against him should be reversed because Mrs. Zapata did not produce legally sufficient evidence of proximate cause. Dr. Pratho acknowledges that there was expert testimony that the medical treatment by other defendants were proximate causes of Zapata's death, but he claims there was no expert testimony that the treatment he provided was a proximate cause of Zapata's death. Furthermore, Dr. Pratho claims that the evidence failed to establish that he should have foreseen that his treatment would result in Zapata's death.

In determining a "no-evidence" issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

In a medical malpractice case, a plaintiff must prove that the negligence of the defendant physician proximately caused the injury alleged. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965). To establish proximate cause, a plaintiff must show (1) cause-in-fact, i.e., that the defendant's negligence was a substantial factor in bringing about the injury and without which no harm would have occurred, and (2) foreseeability, i.e., that the defendant should have anticipated the danger that resulted from his or her negligence. Arlington Mem'l Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922 (Tex.App.-Fort Worth 1999, pet. denied). The trier of fact may decide the issue of causation in medical malpractice cases based upon (1) scientific principles provided by expert testimony allowing the fact finder to establish a traceable chain of causation from the condition back to the event; (2) a probable causal relationship as articulated by expert testimony; or (3) general experience and common sense from which reasonable persons can determine causation. Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex.App.-Fort Worth 2003, pet. denied) (citing Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex.1969)).

Dr. Pratho argues that because Mrs. Zapata presented no expert testimony articulating a probable causal relationship between his treatment of Zapata and Zapata's death, the evidence was legally insufficient to support the jury's verdict against him. Under Marvelli, however, this is only one manner of proving causation. If the expert testimony presented by Mrs. Zapata established medical principles that allowed the jury to trace a chain of causation from Zapata's death back to Dr. Pratho's treatment of him the second time he visited the emergency room, then the jury had sufficient evidence before it of causation and its verdict will stand. See id. at 470; Rocor Int'l, 77 S.W.3d at 262.

At trial, Mrs. Zapata presented the expert witness testimony of William O'Riordan, M.D., a physician who is board certified in emergency medicine. The expert witness testified that Zapata probably was suffering from unstable angina due to the following symptoms that Zapata exhibited when he was treated by Dr. Cochrum at his first emergency room visit:

• one and one-half weeks of waxing and waning symptoms with a variety of locations of discomfort;

• pain or discomfort and symptomology that increased with exertion;

• an EKG that was "highly suspicious for having an old inferior wall or old heart attack or a previous heart attack" and that contained "slightly down sloping or horizontal type[s] of changes"; and

• risk factors, including his male gender, obesity, and smoking.

The expert witness testified that Zapata presented symptoms similar to these to Dr. Pratho when Zapata returned to the emergency room the next day.

In addition, the expert witness opined that both Dr. Cochrum and Dr. Pratho were negligent in failing to treat Zapata's heart condition. In discussing Dr. Cochrum's negligence, the expert witness explained the omissions made by Dr. Cochrum that formed the basis of his negligence opinion:

The presentation [of Zapata's symptoms] required the patient being admitted into the hospital under a cardiologist's care, and in the emergency department treating the patient by starting an IV, administering oxygen, finding out how much oxygen he had circulating in his blood through a pulse oxymeter, administering the Nitroglycerin, aspirin, a medication through the IV or by mouth to lower the blood pressure, and if the chest pain did not disappear, start intravenous Nitroglycerin. Also, blood thinners which were the standard at that time in the form of either a substance called Heparin or glomalocary (phonetic) Heparin should have been started.

The expert further testified that this negligence was a proximate cause of Zapata's death. The expert witness did not, however, go on to state specifically that Dr. Pratho's negligence was also a proximate cause of Zapata's death.

Nevertheless, we conclude that this expert testimony provides legally sufficient evidence of a causal relationship between Dr. Pratho's treatment and Zapata's death because the expert witness's testimony set forth medical principles that, under the facts of this case, applied to both Dr. Cochrum and Dr. Pratho. The expert's testimony provided evidence that Zapata exhibited certain symptoms of unstable angina both when he was treated by Dr. Cochrum and when he was treated by Dr. Pratho and that these symptoms required actions such as admitting Mr. Zapata to the hospital and consulting a cardiologist — actions that Dr. Pratho did not take. Furthermore, the expert witness's testimony provided evidence that the failure to take these actions caused Zapata's death.

Even so, Dr. Pratho argues that there is no evidence of proximate cause because there was no evidence of foreseeability. Dr. Pratho argues that Mrs. Zapata proffered no evidence that he should have reasonably foreseen that his specific treatment of Zapata — sending him home with instructions to follow up with his primary care physician — would lead to Zapata's death. Dr. Pratho argues that...