Wheeler v. Yettie Kersting Memorial Hosp., 01-92-00609-CV

• Decision Date: 29 April 1993
• Docket Number: No. 01-92-00609-CV,01-92-00609-CV
• Citation: 866 S.W.2d 32
• Parties: Roger Wayne WHEELER and Barbara Jo Wheeler, Appellants, v. YETTIE KERSTING MEMORIAL HOSPITAL, Sergio Rodriguez, M.D., M. Davison, R.N., S. Colvin, R.N., University of Texas Medical Branch-Galveston, John Sealy Hospital, Life Support Team, Jerry Russell Davis, and Ernest Koehler, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 32

866 S.W.2d 32

Roger Wayne WHEELER and Barbara Jo Wheeler, Appellants, v. YETTIE KERSTING MEMORIAL HOSPITAL, Sergio Rodriguez, M.D.,

M. Davison, R.N., S. Colvin, R.N., University of Texas

Medical Branch-Galveston, John Sealy Hospital, Life Support

Team, Jerry Russell Davis, and Ernest Koehler, Appellees.

No. 01-92-00609-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

April 29, 1993.

Rehearing Denied Oct. 14, 1993.

Les Cochran, Virginia A. Barry, Houston, for appellants.

Alice M. Giessel, H. Kent Twining, Giessel, Stone, Barker & Lyman, Houston, for appellees.

Before PRICE, COHEN and MIRABAL, JJ.

OPINION

PRICE, Justice. ^*

This is an appeal from four separate summary judgments granted in favor of the appellees, Yettie Kersting Memorial Hospital, Dr. Sergio Rodriguez, Nurses Michele Davison and Sylvia Colvin, Life Support Team and its emergency medical technicians ("EMTs") J.R. Davis and Ernest Koehler, University of Texas Medical Branch ("UTMB"), and John Sealy Hospital against the appellants Roger Wayne Wheeler and Barbara Jo Wheeler (the Wheelers). It is the second such appeal in this medical malpractice suit.

On November 30, 1984, Barbara Wheeler, then in the eighth month of her third pregnancy, contacted the Life Support Team, consisting of EMTs Davis and Koehler, to transport her to John Sealy Hospital ("John Sealy") in Galveston, approximately 90 miles away. The EMT team first took her to Yettie Kersting Memorial Hospital in Liberty ("Yettie Kersting" or "YK"), the nearest medical facility, for a medical assessment to determine whether she could successfully make the trip to John Sealy. EMT Koehler expressed doubt that Mrs. Wheeler could make it to Galveston without giving birth enroute.

When Mrs. Wheeler arrived at Yettie Kersting at approximately 3:10 p.m., ¹ Nurses Davison and Colvin ("the Nurses") assessed her condition as "dilated 4 cm., 70% effaced with bulging membranes, and the fetus at -2 station." This assessment was communicated by telephone to Dr. Sergio Rodriguez, a general practitioner with staff privileges, who was on call that day. Nurse Colvin also called John Sealy and gave the same information to an unidentified doctor there. The John Sealy doctor instructed the nurse to send the patient to Galveston on her left side. ² Dr. Rodriguez also approved the transfer.

The EMTs, however, expressed hesitancy and concern about the patient's condition, the length of the trip, and the amount of traffic they were likely to encounter. Their stated concern involved in part their understanding that 4 cm. was a cut-off point and, according to hospital guidelines, patients dilated that far should not be transferred. However, the EMTs were not authorized to make the decision. Nurse Colvin allegedly instructed them to "put the patient in the ambulance, turn on the lights and sirens and go." The nurses did not recheck Mrs. Wheeler's status before the transfer. Although still unsure of the wisdom of the decision, EMT Koehler nevertheless obeyed and went ahead with the transfer. The ambulance left Yettie Kersting at approximately 3:57 p.m., carrying Mrs. Wheeler and, at the instruction of Nurse Colvin, a second patient also bound for Galveston.

When the ambulance reached Kemah, Texas, Koehler advised Davis, the driver, that Mrs. Wheeler's water had broken, and the EMTs decided that birth was imminent. At 4:48 p.m., Davis pulled off the road, stopped in the parking lot of the Kemah Post Office, and called John Sealy Hospital for Life Flight. Because Mrs. Wheeler was having contractions and the fetus was not coming out of the birth canal, EMT Davis decided to tear open the amniotic sac so the baby wouldn't "drown in the amniotic fluid." Several minutes later, the baby, a boy, presented in a frank breech position (buttocks first). He was delivered up to the neck with good color and extremities moving, at which point Mrs. Wheeler's cervix clamped down around the baby's neck (a common complication of breech birth) and the birth process stopped. The baby slowly became cyanotic and suffocated to death. Neither Koehler nor Davis intervened in any attempt to save the baby's life.

At approximately 5:13, when the Life Flight helicopter arrived, the emergency team found EMT Koehler supporting the baby's body, its head and neck still inside the womb. After noting that the baby's limbs were cyanotic and limp, the Life Flight nurse completed the delivery. The baby's head was delivered with the umbilical cord wrapped around its neck. In spite of attempts at resuscitation, the baby was pronounced dead on arrival at John Sealy Hospital. Cause of death was listed as "anoxia due to interruption of the fetoplacental circulation by trapping of the umbilical cord between the cervix and the fetal head during the prolonged breech delivery."

The Wheelers filed suit seeking damages for the wrongful death of their child and alleging common law causes of action. The defendants moved for summary judgment only on the wrongful death claim. However, the trial court granted a final summary judgment in favor of the defendants on all causes of action. This Court affirmed the summary judgment in part, holding that the stillbirth precluded a statutory wrongful death suit. Wheeler v. Yettie Kersting Memorial Hosp., 761 S.W.2d 785, 786 (Tex.App.--Houston [1st Dist.] 1988, writ denied) ("Wheeler I "). However, we reversed the summary judgment on all other causes of action pleaded by the Wheelers and remanded for trial. Id. at 786-87. The case reaches us again on appeal of summary judgments granted in favor of the appellees on all the Wheelers' remaining causes of action. ³ The Wheelers raise 15 points of error.

Standard of Review

The standard of review of all four summary judgments is the same. The defendant, as movant for summary judgment, bears the burden to conclusively disprove as a matter of law one or more of the elements essential to each of the plaintiff's claims. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991); Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex.App.--San Antonio 1987, writ denied); Wheeler v. Aldama-Luebbert, 707 S.W.2d 213, 215 (Tex.App.--Houston [1st Dist.] 1986, no writ). ⁴ He may establish his right to summary judgment on the uncontroverted testimony of an expert witness if the subject matter is such that a trier of fact would be guided solely by the opinion testimony of experts, so long as the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. TEX.R.CIV.P. 166a(c). The affidavit of an interested expert who is also a party to the case can support summary judgment if it meets the requirements of rule 166a. Anderson, 808 S.W.2d at 55.

When the defendant has produced competent evidence to negate a necessary element of the plaintiff's cause of action, then the plaintiff must introduce evidence sufficient to raise a fact issue with respect to the element the defendant seeks to negate. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Sakowitz Inc. v. Steck, 669 S.W.2d 105, 107-108 (Tex.1984); Knapp v. Eppright, 783 S.W.2d 293, 295 (Tex.App.--Houston [14th Dist.] 1989, no writ).

On review, the appellate court will take evidence favorable to the nonmovant as true and will resolve any doubts about the existence of a fact issue in the nonmovant's favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). If differing inferences may reasonably be drawn from the summary judgment evidence, a summary judgment should not be granted. Nixon, 690 S.W.2d at 549; Ford v. Ireland, 699 S.W.2d 587, 588-589 (Tex.App.--Texarkana 1985, no writ). The movant's own evidence may establish the existence of a genuine issue of material fact on the plaintiff's claim. Johnston v. Vilardi, 817 S.W.2d 794, 796-97 (Tex.App.--Houston [1st Dist.] 1991, writ denied).

SUMMARY JUDGMENT IN FAVOR OF DR. RODRIGUEZ (Points of Error 1 and 2)

To recover on a medical malpractice claim, a plaintiff must establish the following essential elements: (1) a legally cognizable duty requiring the physician to conform to a certain standard of care or conduct; (2) the applicable standard of care and a breach of that standard; (3) injury; and (4) a reasonably close causal connection between the breach of the standard and the injury suffered by the plaintiff. Pinckley, 740 S.W.2d at 531; Wheeler v. Aldama-Luebbert, 707 S.W.2d at 217.

In support of their malpractice claim against Dr. Rodriguez, the Wheelers presented the affidavit of Dr. Michael Finan, an obstetrical expert, that set out the specific elements of the standard of care for a doctor in an on-call capacity at a rural hospital who proposes to transfer an obstetrical patient to a distant facility. Specifically, according to the expert, the applicable standard of care required Dr. Rodriguez to obtain sufficient information from the nurse performing the examination to accurately determine the status of the patient's labor, including but not limited to the following:

1. History of present and prior pregnancy duration and complications;

2. History of prior labor and delivery duration and complications;

3. History of gestational age at previous deliveries and infant complications;

4. Frequency, duration, and intensity of contractions;

5. Fetal well-being, as observed on the fetal monitor, or fetal heart tones following successive contractions;

6. Presenting part and position of fetus;

7. Cervical dilatation and effacement;

8. Pelvic change over time;

9. Competence of fetal membranes;

10. Maternal well-being including but not limited to signs and symptoms of labor, vital signs, and signs and symptoms of the medical complications of pregnancy.

Dr. Finan concluded that the information given to Dr. Rodriguez by the nurses was insufficient to enable Dr. Rodriguez to formulate an opinion as to whether Mrs. Wheeler could safely be transported to John Sealy H...