Opinion by Justice Whitehill.
We deny appellees' motion for rehearing. On the Court's own motion, we withdraw our opinion dated December 31, 2014, and vacate the judgment of that date. This is now the Court's opinion.
Appellees' daughter Daniella was born prematurely. Her treating physicians included appellants Enrique N. Ponte Jr., M.D., and Jorge Fabio Llamas-Soforo, M.D. Despite the doctors' efforts, Daniella eventually went blind in her right eye and lost most of the vision in her left eye. Appellees, acting on Daniella's behalf, sued Ponte, Llamas, and their employers. The case was tried to a jury, which made findings in appellees' favor. The trial judge rendered judgment against appellants based on the jury's findings, reduced by settlement credits. Ponte, Llamas, and their employers appealed. Because appellees adduced no non-conclusory evidence of causation, we reverse and render judgment that appellees take nothing.
The evidence adduced at trial supported the following facts. Appellee Marcela Bustamante gave birth to Daniella at Del Sol Medical Center in El Paso on May 19, 2005. The admission note describes Daniella as weighing 600 grams at birth and as having a "23 week 1 day gestational age." She was admitted to Del Sol's neonatal intensive care unit. Appellant Ponte, a neuroneonatologist and an employee of appellant Pediatrix, was medical director of Del Sol's neonatal ICU. Ponte was Daniella's attending physician while she was in Del Sol's neonatal ICU.
Daniella suffered from several medical problems related to her premature birth, including seizures, bleeding and inflammation in the brain, and patent ductus arteriosus, which is a condition involving the blood vessels near her heart that required
Ponte contacted appellant Llamas, an ophthalmologist, and asked him to examine Daniella. Llamas examined Daniella's eyes on July 4, 2005, and he observed no sign of ROP. Llamas's note from the examination reflects that there was to be a follow-up examination in four weeks. Llamas examined Daniella again on August 1. During that examination he determined that Daniella had developed ROP, and he recommended surgical treatment of the ROP as soon as possible. He performed the surgery on August 4. That procedure involved using a laser to burn parts of Daniella's retinas. The surgery sacrifices the patient's peripheral vision to some extent to conserve his or her "central vision."
At some point after the August 4 surgery, Daniella's right retina became detached. As a result, she is blind in her right eye, and eventually the eye may have to be removed. She has some vision in her left eye, but it is significantly impaired. There was evidence that Daniella must wear glasses and must hold symbols a few inches from her left eye in order to see them. There was also evidence that she suffers from other conditions, such as cerebral palsy, and that she is developmentally delayed to an undefined extent.
In 2008, appellees, as next friends of Daniella, sued appellants and Del Sol Medical Center's owners for negligence and gross negligence that allegedly caused Daniella's vision impairment. The owners settled with appellees before trial. The remaining claims were tried to a jury in 2011. The trial judge submitted jury questions regarding the negligence of Ponte, Llamas, and Del Sol Medical Center. He did not submit any questions regarding any independent negligence by Pediatrix or by Llamas's professional association.
The jury found Ponte, Llamas, and Del Sol Medical Center negligent. It apportioned 45% of the responsibility for Daniella's injury to Ponte, 45% to Llamas, and 10% to Del Sol. For damages, the jury found that Daniella would incur future medical expenses of $962,000 after she turned 18 and future attendant care expenses of $988,000 after she turned 18. The jury also found damages for Daniella's pain and mental anguish, disfigurement, and physical impairment totaling $174,000. Because the verdict was not unanimous, the jury did not answer the question about Ponte's and Llamas's gross negligence.
The parties engaged in post-verdict motions practice. The trial judge signed a final judgment, a corrected final judgment, and finally a second corrected final judgment. In the second corrected final judgment, the judge rendered judgment against appellants based on the jury verdict, adjusted to account for the settlement credit. In that judgment, Llamas and his professional association were held jointly and severally liable for about $873,000, and Ponte and Pediatrix were separately held jointly and severally liable for the same amount.
Appellants argue that the evidence is legally insufficient to support the jury's findings that Ponte's and Llamas's negligence proximately caused any injury to Daniella's vision. Appellants preserved their legal sufficiency challenge by means
When an appellant attacks the legal sufficiency of the evidence to support an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. If evidence is so weak that it does no more than create a surmise or suspicion of the matter to be proved, the evidence is no more than a scintilla and, in legal effect, is no evidence. The evidence is legally sufficient if it is sufficient to enable reasonable and fair-minded people to reach the verdict under review. In conducting our review, we view the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. We must credit evidence favorable to the verdict if a reasonable person could, and we must disregard contrary evidence unless a reasonable person could not.
In a medical-malpractice case, the plaintiff must prove the existence of a legal duty, a breach of that duty by the defendant, proximate causation, and damages.
If the causation issue is not one within the experience of a lay person, the plaintiff must ordinarily produce expert testimony of proximate causation.
If no factual basis is offered for the causation opinion, or the factual basis that is offered provides no support, the causation opinion is conclusory, even if it is not objected to.
The jury heard evidence of these background facts. Normally, retinal blood vessels develop flat against the back wall of the retina. But in premature babies, the retina and its blood vessels are not fully developed at birth. Such babies often develop ROP, which is characterized by the development of weak, abnormal blood vessels that can actually grow out into the center cavity of the eye. ROP is referred to as "plus disease" if the abnormal blood vessels are thick, tortuous, and located in the back of the eye near the optic nerve. Scientists believe that ROP is caused when the parts of the retina that lack blood vessels produce a growth factor that triggers the development of the abnormal blood vessels. Evidence was presented that ROP eventually goes away by itself, and that not all babies who develop ROP need treatment. In some cases, however, ROP can cause scar tissue that can in turn cause retinal detachment and vision loss. Thus, in serious ROP cases, surgical treatment is appropriate. The current form of treatment is laser surgery, which uses a laser to burn some of the parts of the retina that produce the growth factor. The evidence showed that it was extremely likely that Daniella would eventually develop ROP. Ponte himself testified that 100% of babies born at 23 weeks develop ROP.
There was evidence that in 2001, the American Academy of Pediatrics and the American Academy of Ophthalmology promulgated guidelines recommending that physicians start examining premature babies for ROP at the later of four to six weeks after birth or 31 to 33 weeks gestational age. The 2001 guidelines were not changed until 2006, and Ponte testified that he followed the 2001 guidelines until 2006 (the year after Daniella's birth and treatment).
Appellees' expert witness William Good, M.D., a pediatric ophthalmologist, however, testified that a study called the Early Treatment for Retinopathy of Prematurity (ETROP) was conducted before 2003. He opined that publishing of the study's results in 2003 changed the standard of care very quickly. Good testified that the ETROP study showed that babies should be screened and treated for ROP earlier than was previously believed.
Good identified three standard of care breaches in this case, the first two he ascribed to both Ponte and Llamas and the last he ascribed to Llamas alone. First,
Second, Good testified that the three-day delay in treatment between August 1 and August 4 violated the standard of care because Daniella's ROP should have been treated earlier than that.
Third, he testified that the manner in which Llamas performed the laser surgery was inadequate.
Appellees also introduced testimony from expert witness and neonatologist Dale Phelps, M.D. She testified that Ponte breached the standard of care by failing to "work[] out a set of written guidelines for his staff to communicate with the ophthalmologist." She indicated that this criticism related to Daniella's follow-up examinations for ROP. She also testified that Llamas breached the standard of care by scheduling Daniella's follow-up eye examination four weeks after the July 4 exam and by failing to describe his observations in his notes from the July 4 exam in a way that could be understood by the staff that he was working with. She testified that, depending on Llamas's observations on July 4, a follow-up eye examination should have been done somewhere from one to three weeks after the July 4 examination. She did not, however, provide any testimony regarding the surgery itself.
Appellees do not argue that they proved cause in fact without expert testimony. They instead rely on Good and Phelps for that evidence. Good testified about the effect of delaying treatment after Llamas examined Daniella on August 1: "[E]very day that went by [without treatment] put [Daniella] at further risk of suffering an adverse outcome." He then criticized the manner in which Llamas performed the laser surgery as follows:
(Emphases added.) Later, Good addressed causation more globally and at greater length:
Good also opined that Daniella's vision would be better than 20/200 if appellants had given her appropriate treatment. Instead, her right eye is blind, and her left eye is roughly 20/1200 or 20/1300.
Phelps, who focused on the four week gap between the July 4 and the August 1 examinations as the principal negligence committed by Ponte and Llamas, provided the following causation testimony:
Shortly thereafter, appellees' counsel again asked Phelps, "Would Daniella Bustamante more likely than not in your opinion have functional vision had they done it correctly — these doctors done this correctly?" Phelps answered, "Yes."
After reviewing both experts' testimony, we conclude that appellees adduced legally insufficient evidence of cause in fact against Ponte.
Good did not testify that Ponte's negligent acts and omissions, individually or collectively, were more likely than not a but-for cause of Daniella's injuries. Rather, he testified that each instance of negligence by both doctors contributed "in an incremental fashion" to Daniella's poor visual outcome. Ponte's first act of negligence
Good also failed to establish but-for causation as to Ponte's other act of negligence, permitting a three day delay in the performance of the laser surgery after the August 1 examination. According to Good, this delay "incrementally increased the chances of a bad outcome for" Daniella. Again, his testimony that swifter surgery would have had some unquantified positive effect on Daniella's chance of a better outcome is legally insufficient to show but-for causation.
Good gave additional causation testimony after he added to the equation Llamas's negligence in performing the laser surgery. Good described the inadequate laser surgery as "the coup de grace" and said that the surgery "was causally or proximately responsible for blindness in the right eye and poor vision in the left eye." Appellees' counsel then gave Good a definition of proximate cause that included the cause-in-fact requirement, and he asked Good whether all of the negligence he had described, committed by both Ponte and Llamas, proximately caused Daniella's injuries: "Is Daniella's blindness in your opinion proximately caused by the negligence that you described for us?" (Emphasis added.) Good answered, "Yes, it was." Counsel then asked, "Can you tell us more likely than not what her vision would be like had these defendants acted properly?" (Emphasis added.) Good answered, "More likely than not, she would have what I would call a sighted life. In other words, she would be able to use her vision to function in her environment."
When Good expressed a causation opinion in terms of but-for causation, he predicated his opinion on the combined negligence of both Ponte and Llamas as to all three events — the negligent examination schedule, the three day delay in performing the surgery, and Llamas's negligent performance of the laser surgery. But Ponte was not involved in performing the laser surgery, so he was not responsible for the consequences of any negligence that necessarily included negligent performance of the laser surgery. As emphasized above, Good declined to opine that the four week delay in examining Daniella or the three day delay in performing the surgery, either separately or considered together, was more likely than not a but-for cause of Daniella's injuries. We conclude that Good's testimony constitutes no evidence that Ponte's negligence was a but-for cause of the injuries to Daniella's eyes.
This leaves the causation testimony of Phelps, who identified Ponte's negligence
We conclude that Phelps's testimony about the causal connection between Ponte's negligence and Daniella's injuries was conclusory and therefore constituted no evidence of but-for causation against Ponte.
Phelps testified about the ETROP study results and said that favorable outcomes were more common among babies who received early laser treatment as compared to babies who received laser treatment later. She also testified that bad results occurred after conventionally timed laser treatment about 14% to 16% of the time and that babies in the early treatment group suffered bad results only about 9% of the time. But she did not say that the ETROP study showed that earlier treatment of Daniella probably would have prevented her injuries in her particular case. (In fact, Good specifically denied that the ETROP study could be used to determine whether a delay in treatment actually affected a baby's vision.)
When the evidence shows that a particular treatment helps some patients and not others, the expert must explain the facts justifying a conclusion that a particular patient probably would have been helped by the treatment.
Next, we examine the cause in fact evidence as to Llamas. We hold that all of the evidence that Llamas's negligence caused Daniella's injuries was conclusory and therefore is no evidence of proximate cause.
We have already held that Phelps's causation testimony was conclusory and nonprobative as to Ponte. Phelps did not offer any different causation testimony as to Llamas. Indeed, she lumped Ponte and Llamas together when she opined that Daniella would have functional vision if Ponte and Llamas had not been negligent regarding Daniella's follow-up exam schedule. Accordingly, we conclude that Phelps's conclusory causation testimony was no evidence of but-for causation against Llamas.
This leaves the testimony of Good, who identified Llamas's three negligent acts as failing to examine Daniella between July 4 and August 1, failing to perform the laser
We next consider Good's testimony regarding Llamas's third act of negligence, his negligent performance of the laser surgery. When Good considered the surgery by itself, he did not opine clearly that the surgery alone was probably a but-for cause of Daniella's injuries. He testified that the inadequate surgery "contributed to, in a proximate way, to her loss of vision in the right eye and some detrimental loss of vision in the left eye." He also testified that the flaws in the surgery "contribute[d] to an adverse outcome in a manageable ROP." But Good did not opine that the inadequate surgery alone was, more likely than not, a but-for cause of Daniella's vision loss. His opinions that the negligence "contributed to" the vision loss are legally insufficient evidence of proximate cause.
But Good did say that all three negligent acts by Llamas collectively were, more likely than not, a but-for cause of Daniella's injuries. After testifying that Llamas's first two negligent acts increased Daniella's risk, Good testified that Llamas's negligent performance of the laser surgery "basically placed these eyes at extremely high risk and was causally or proximately responsible for blindness in the right eye and poor vision in the left eye." (Emphasis added.) Then appellees' lawyer defined proximate cause for Good, and Good testified that Daniella's extremely limited vision was proximately caused by "the negligence" that Good had previously described — meaning, in context, all the negligence by both appellants. Good also testified that if appellants had acted properly, "[m]ore likely than not, [Daniella] would have ... a sighted life. In other words, she would be able to use her vision to function in her environment." Good's testimony, taken at face value, was sufficient to show that Llamas's negligence, considered collectively, was more likely than not a but-for cause of Daniella's injuries. But, as discussed below, that does not answer the question of whether the causation evidence was legally sufficient.
We next consider Llamas's argument that Good's cause-in-fact testimony against Llamas was conclusory. The question is whether Good explained how and why Llamas's three acts of negligence caused the injury.
This leaves Good's testimony that Llamas's negligent performance of the laser surgery was causally connected to Daniella's injuries. Good testified that laser therapy has an overall success rate of over 75%. He criticized Llamas's surgery because, Good claimed, he could see from photographs that there were areas where Llamas failed to make the laser burns sufficiently close together, and there were other places, which he called "skip lesions" or "skip areas," where the laser burns "didn't take" or where Llamas applied no laser treatment at all. Good testified that in a proper laser surgery, the burn areas should be confluent or nearly confluent, meaning no more than one burn width apart. He also said that leaving skip areas can allow the disease to progress further.
On the other hand, Good also testified that there was a significant chance that Daniella would have suffered the same bad outcome even with proper treatment. On cross-examination, Good agreed that 89 of the babies involved in the ETROP study, or about 22%,
The key legal principle is stated in the Jelinek case: "[W]hen the facts support several possible conclusions, only some of which establish that the defendant's negligence caused the plaintiff's injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert's opinion."
Appellees rely heavily on the following testimony by Good in their attempt to show that Good sufficiently explained the basis for his causation opinion:
And then, when asked whether skip areas "keep the disease progressing instead of stopping," Good answered, "Well, it can, yes." In his testimony, Good gave a general explanation of the physiology underlying ROP, and in Phelps's testimony, she explained that using a laser to burn part of the retina that lacks blood vessels prevents the release of the growth factors that cause ROP. The record thus contains evidence explaining how laser treatment effectively treats ROP when it does effectively treat ROP. But no one explained why laser treatment failed roughly 22% of the time in the ETROP study, and no one explained why proper laser treatment in Daniella's specific case probably would have resulted in a better outcome, despite Daniella's specific risk factors that made her prognosis worse than it otherwise would have been.
This case is similar to the Jelinek case, in which a hospital negligently failed to treat its patient with antibiotics as prescribed, and the patient suffered a significant amount of pain thereafter.
Here, like Jelinek, the evidence showed that there was a significant chance that Daniella would have suffered the same injuries even if Llamas had performed the surgery as Good said he should have. The evidence also showed that Daniella had specific risk factors that made a bad outcome in her case more likely. But Good did not explain why performing the surgery differently probably would have prevented Daniella's injuries in her particular case, despite the possibility of a bad outcome even with proper treatment and despite her particular risk factors that increased the likelihood of a bad outcome. After reviewing the record, we conclude that Good's causation testimony regarding Llamas's negligent surgery was conclusory because Good did not explain how and why performing the surgery differently probably would have resulted in a different outcome for Daniella.
Appellees' motion for rehearing does not argue that Good or Phelps offered enough factual and explanatory testimony to make their ultimate causation opinions nonconclusory. Instead they argue that the evidence about the ETROP study results was sufficient evidence of but-for causation, citing Merrell Dow Pharmaceuticals, Inc. v. Havner ex rel. Havner.
In Havner, the Texas Supreme Court specifically declined to hold "that a single epidemiological test is legally sufficient evidence of causation."
We conclude for several reasons that the ETROP study evidence constitutes no evidence of but-for causation of Daniella's injuries.
First, there is no evidence showing that Daniella's particular characteristics were substantially similar to the ETROP study group's characteristics. No summary or report of the ETROP study's results was admitted into evidence, so we know very little about it other than its concluding results. Accordingly, we have no way to determine how the ETROP results might apply to Daniella's particular facts, and there is no reasonable basis for concluding that the ETROP study's results would also apply to her. Good admitted that Daniella had risk factors that made a bad outcome more likely in her case regardless of the course of treatment. Nothing in the record indicates whether the babies involved in the ETROP study suffered from any of the same risk factors that Daniella had. The record does not disclose whether the ETROP babies who experienced bad outcomes despite early treatment were more similar to Daniella than were the ETROP babies who experienced good outcomes. Without evidence showing that Daniella was similar to the babies involved in the ETROP study, the ETROP study cannot support a causation finding.
Second, this excerpt from the supreme court's Jelinek decision represents that opinion's core principles:
Jelinek thus instructs that, where an expert attempts to explain his or her conclusory opinion, that explanation must have a sound evidentiary basis or the expert's opinion is still no evidence.
Third, the ETROP study evidence furnishes no causation evidence regarding the theory that Llamas's negligent performance of the surgery caused Daniella's blindness. Good testified that Llamas's surgery performance was negligent because the laser burns were not as confluent as they should have been and because there were skip areas. But he did not testify that the ETROP study surgeries conformed to the standard of care as Good defined it. He acknowledged that he did not look at all of the babies' eyes that were operated on in the ETROP study to see how those surgeries were performed:
Good's testimony does not show that the ETROP study has any probative force regarding the causal connection between the manner of performing laser surgery and the outcome. We can infer from his testimony that he looked at some of the surgical results, and in "many" eyes the laser was applied in a confluent manner, but it is unknown whether the laser was not applied confluently to other eyes in the majority cohort. And he testified that he did not examine the eyes that suffered retinal detachment, so it is possible that those
Fourth, Good admitted that the ETROP study is not proper causation evidence as to negligent treatment delays — which means that the study is useless as to both acts of negligence alleged against Ponte and two of the three acts of negligence alleged against Llamas.
Finally, the ETROP study is just one study. The Havner court specifically declined to hold that a single epidemiological test is legally sufficient causation evidence.
Jelinek and Havner required appellees to provide a factual basis for comparing Daniella and the ETROP study participants. To say that the ETROP study shows that Daniella — with her specific additional risk factors — had about a 78% chance of a sighted life assumes that her situation is sufficiently similar to the study participants. However, the record provides no evidence supporting that assumption. Because the required evidence is missing, appellees did not provide the circumstantial causation evidence that Jelinek requires.
Appellees' causation evidence showed only that a different treatment plan could have resulted in a different outcome for Daniella, which does not suffice to show but-for causation. To the limited extent appellees' experts purported to establish but-for causation, their testimony lacked factual explanation and support and was thus non-probative. Accordingly, appellees adduced legally insufficient proximate cause evidence against appellees Ponte and Llamas. The trial court erred by failing to grant appellants' motion for a take nothing judgment notwithstanding the verdict.
For the foregoing reasons, we reverse the judgment of the trial court and render judgment that appellees take nothing from appellants.
Schenck, J., dissenting
DAVID J. SCHENCK, JUSTICE, dissenting
The Court concludes in a thoughtful and comprehensive opinion that appellees offered no evidence of causation. I regret that I find myself unable to join it. Because I would hold that the record, viewed as a whole and in the light most favorable to the verdict, reflects at least some evidence of cause in fact, I respectfully dissent.
The Court clearly explains the applicable law. To establish cause in fact, the plaintiff must introduce evidence of a "reasonable medical probability" or a "reasonable probability" that her injury was caused by the defendant's negligence. As the Court explains, this standard
As all involved in the case appear to agree, baby Daniella was highly likely to develop ROP, a condition that without timely diagnosis and competent surgical intervention could cause her permanent vision loss.
The question of causation in fact — or "but-for" cause — is usually among the more simple and obvious problems associated with legal liability in tort. By itself, but-for causation is far-reaching. The most vivid illustration of the breadth of the concept may come from the nursery rhyme relating the loss of a kingdom for want of a nail.
Fairly summarized, Dr. Good's extensive testimony, as supplemented by like testimony from Dr. Phelps, identified the negligence of each defendant and explained how it contributed to Daniella's blindness. The acts of negligence identified by the Court, and established by the evidence, were (1) failure to examine Daniella at all during a critical time period; (2) failure to perform laser treatment promptly after determining its necessity; and (3) negligent performance of the laser treatment itself. But the Court concludes that the expert testimony about these acts "does not suffice to show but-for causation" because it "lacked factual explanation and support" or was "conclusory." Opinion at 13, 24. In the Court's view, the plaintiffs failed to explain "how and why" these acts, undisputedly in violation of the standard of care, caused Daniella's blindness. See, e.g., Opinion at 15 ("The question is whether Good explained how and why Llamas's three acts of negligence caused the injury."). The experts, in my view, answered these questions by providing specific evidence from Daniella's medical records, their own subsequent examination of her, and from their own expertise about the progression and treatment of ROP in general and in Daniella's case in particular. They could not, of course, pinpoint exactly when Daniella developed ROP, testify to a date on which her ROP became treatable, or quantify exactly the actual delays. Because Daniella was not examined for four weeks, there is no medical record to consult to determine the status and progression of her ROP during this critical time period. But there was evidence from which the jury could have found that timely diagnosis and properly performed treatment would have, more likely than not, resulted in a sighted life for Daniella.
Dr. Good offered his opinions, quoted by the Court, that both the examination schedule and the laser treatment itself fell below the applicable standards of care, and that these failures were a proximate cause of Daniella's blindness. No witness disputed that prompt diagnosis and treatment of ROP was the accepted standard of care (as Dr. Ponte agreed, ROP should be "diagnosed as soon as it is diagnosable" and "treated as soon as it is treatable"),
In addition to Dr. Good's testimony, plaintiffs' expert Dr. Phelps testified that if Drs. Ponte and Llamas had timely examined Daniella in accordance with the standard of care, they "would have seen the ROP as it started up or as it became established and before it became advanced." If they had followed the standard of care, "more likely than not Daniella would have functional vision." Thus, the only evidence offered at trial by any party was that timely and competent examination and treatment are the standard of care, and blindness is the foreseeable result when the standard is not met. Daniella's experts then opined that Daniella is blind because she did not receive this timely and competent care.
Dr. Good also testified to his expert opinion that timely and competent "ROP laser therapy is effective in stopping the progression of ROP in most babies," with a 75% success rate "or higher," for "all comers." Dr. Good was responding to a question regarding a chapter in a treatise written by one of the defense experts, Dr. Graham Quinn. Also, as appellees urge on rehearing, the ETROP
I would conclude on this record that there is nothing missing from this causal chain. The defendants knew Daniella's risk of ROP was almost certain. They also knew that ROP could result in blindness, and that standards had been accepted by the medical community to prevent that result. Even at the time, defendants understood that timely examination, and treatment if necessary, prevented blindness. Yet Daniella's ROP was neither "diagnosed as soon as it was diagnosable" nor "treated as soon as it was treatable." In my view, the "how and why" is that defendants allowed Daniella's ROP to progress past the point where diagnosis and treatment, in her experts' opinion, should have been made and undertaken. When treatment was belatedly undertaken, it was improperly performed. Viewing the evidence in the light most favorable to the jury's verdict, and indulging every reasonable inference that would support it, see City of Keller v. Wilson, 168 S.W.3d 802, 820-22 (Tex.2005), Daniella would not be blind but for the (1) delay in diagnosis and treatment; (2) improperly performed treatment; or (3) both. In my view, the evidence supports any one of those three possible findings.
To be sure, had the laser therapy been performed without negligence, our causation inquiry would be simplified. Daniella's blindness could have been a product of only one of two causes: (1) delaying the diagnosis and laser treatment, for which there is ample evidence, or (2) she had no hope of recovery regardless of her treatment — a notion supported by no evidence and contrary to the opinion of two experts and the probabilities suggested by the objective data. The fact that the causation problem is further obscured by additional negligence in performing the surgery does not add to the victim's burden and would
As the jury was instructed, there may be one or more causes of an event. If there were some evidence that delay in treatment alone
correction.
In sum, Dr. Good explained how both Dr. Ponte and Dr. Llamas deviated from the applicable standards of care for babies at known risk for ROP, and further testified as to how these deviations were the proximate cause of Daniella's blindness. This is, therefore, not a case where a credentialed expert appeared at trial simply to declare the harm to be a product of misfeasance, leaving the basis for the conclusion a mystery or in conflict with his own testimony concerning other possible causes.
On rehearing, appellees cite Merrill Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), to support their contention that epidemiological data may
Neither Dr. Good's failure to establish that Daniella's blindness was attributed solely to one of the multiple acts of negligence here, nor his failure to explain why Daniella would not have been among the minority of patients (22%)
Although it is no longer explicit in the Court's opinion that each defendant's negligence alone must be, more likely than not, a but-for cause of Daniella's injuries, the Court maintains its criticism of Dr. Good's testimony that "he predicated his opinion on the combined negligence of both Ponte and Llamas" in a sequence of events. Opinion at 12. But a defendant's act or omission need not be the sole cause of an injury, as long as it is a substantial factor in bringing the injury about. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992).
The Court also imposes a burden on plaintiffs to affirmatively disprove all other potential causes of an injury, regardless of likelihood of occurrence, in order to establish that a defendant's negligence was more likely than not a cause in fact of an injury. See Opinion at 16-17 (Good "did not explain why he concluded Daniella would not have been among the 22% of babies who suffered blindness even after receiving proper laser treatment").
Having established the treating physician's negligence and the harm foreseeably relating to it, and having proffered competent expert opinion — augmented by objective data supporting it — that the negligence was the probable cause of the foreseeable harm, a patient does not bear the further burden of negating all other possible causes of an injury in order to raise a fact issue with respect to causation. E-Z Mart Stores, Inc., 825 S.W.2d at 460-61. Under the Court's standard, in any medical negligence case, a plaintiff could not raise a fact question as to whether a reasonable degree of probability supports causation without first affirmatively disproving — no matter how unlikely — all other potential complications of the surgery or preexisting conditions of the plaintiff. The concern here is that this same standard applies universally across virtually
While it was possible that Daniella would have been blind even with proper treatment, on this record, viewed as a whole, it is not probable. Rather, the opposite has been shown — not to a certainty perhaps, but certainly to a reasonable degree of medical probability. The Supreme Court has set the probability bar at 50% in Kramer. Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 400 (Tex. 1993). I would conclude that the plaintiffs have offered some evidence of causation by establishing the probability of a sighted life at 75% or higher, especially in the absence of record evidence suggesting any reason why Daniella's prospects were reduced.
The Court relies on Jelinek to impose these burdens in addition to proof of a reasonable medical probability that Daniella's injury was caused by appellants' negligence. I would conclude that this case is materially distinct from Jelinek. In Jelinek, a doctor testified that the plaintiff's pain was caused by the defendants' failure to treat her infection with a particular antibiotic. 328 S.W.3d at 535-37. But the doctor also admitted on cross-examination that the symptoms he cited were equally consistent with two other infections, later found in the plaintiff, for which the absent antibiotic would not have been effective. Id. at 535-36. According to the expert himself, the plaintiff's symptoms were just as likely to have been caused by something other than the defendants' negligence as by the negligence itself. On those facts it was impossible for the proof of negligence causation, including the expert's own opinion, to preponderate.
Absent equally likely causes, I do not think the Jelinek court would require an
In my view, such a notion is contrary to settled Texas law. Quoting Havner, the court in Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 217-18 (Tex.2010), explained that "a medical causation expert need not disprove or discredit every possible cause other than the one espoused by him" unless "evidence presents other plausible causes of the injury or condition that could be negated." Id. (quoting Havner, 953 S.W.2d at 720) (internal quotation marks omitted). The court in Bostic, also citing Havner, described the application of this concept in asbestos-disease cases, explaining that "it properly stands for the proposition that, even in mesothelioma cases, liability cannot be imposed on every conceivable defendant whose product exposed the plaintiff to some unquantified amount of asbestos, without proof of something more." Bostic, 439 S.W.3d at 341. These cases, in my opinion, do not require a plaintiff who has offered proof that the defendant's negligence more than likely caused her injury to also speculate about other possible unknown causes and then disprove them. As this Court has explained, "[t]he plaintiff need not exclude all possibilities; it is sufficient to prove that the greater probability is that the defendant's conduct, alone or in contribution with others, was the cause of the harm." First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex.App.-Dallas 2001, no pet.).
In Kramer, the court explained, "the ultimate standard of proof on the causation issue" in a medical malpractice case is "whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred." 858 S.W.2d at 400. The court continued, "[t]he effect of these standards is to bar recovery where the defendant's negligence deprived the tort victim of only a 50% chance or less of avoiding the ultimate harm." Id. Proving that Daniella was not in the 22% (or fewer)
Here, Dr. Good did not testify regarding equally likely causes of Daniella's blindness. Instead, Dr. Good testified unequivocally that the delay in Daniella's screening evaluation, the delay in laser treatment, and the inadequate laser treatment "each contributed to the poor visual outcome that Daniella experienced." Dr. Good testified that "more likely than not," Daniella's blindness was caused by the negligence he and Dr. Phelps described, and cited the ETROP study showing a high success rate for properly treated patients to augment that conclusion. Under Jelinek, this testimony is sufficient to establish cause in fact. See Jelinek, 328 S.W.3d at 532-33. The notion that some ROP patients exposed to negligence might, based on their particular circumstances, have been more likely to fall into the 22% of patients destined to be blind anyway is one that the defendants in such a case would want to develop in hopes of avoiding an adverse or directed verdict.
I would grant appellees' motion for rehearing and affirm the trial court's judgment.
