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NUMBER 13-03-00708-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALEX AMAYA, INDIVIDUALLY
AND AS NEXT FRIEND OF CLAIRE
AMAYA, A MINOR, AND ON BEHALF
OF THE ESTATE OF OFELIA G. AMAYA,
DECEASED AND LEONOR GUTIERREZ,
INDIVIDUALLY, Appellants,
v.
BAY AREA HEALTHCARE GROUP LTD.
D/B/A CORPUS CHRISTI MEDICAL CENTER
DOCTOR=S REGIONAL MEDICAL CENTER
AND ROBERT WANG, M.D., Appellees.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Garza
Memorandum Opinion by Justice Yañez
Appellants, Leonor Gutierrez, individually, and Alex Amaya, individually, as representative of the estate of Ofelia G. Amaya, and as next of friend of Claire Amaya, a minor, appeal from the trial court=s grant of summary judgment in favor of appellees, Bay Area Healthcare Group, Ltd., d/b/a Corpus Christi Medical Center, and Robert Wang, M.D., on their causes of action for negligence brought under the medical liability act. We reverse and remand.
Background
On December 27, 1998, Ofelia Amaya, a thirty-two year old woman who was seven weeks pregnant, arrived at the Corpus Christi Medical CenterCDoctor=s Regional Medical Center (AMedical Center@), complaining of shortness of breath, fever, chills, congestion, and a cough. Ms. Amaya was subsequently admitted to the Medical Center. Upon admission, multiple laboratory tests were ordered, and Ms. Amaya was prescribed an antibiotic for the treatment of potential bacterial pneumonia. Ms. Amaya=s health rapidly deteriorated, characterized by a worsening fever, tachycardia, tachypnea and hypoxia, which required intubation and mechanical ventilation beginning on December 29, 1998. Shortly thereafter, Ms. Amaya was diagnosed with Acute Respiratory Distress Syndrome (AARDS@). At approximately 1:00 p.m. on January 1, 1999, Ms. Amaya arrested while on ventilation, and developed a tension pneumothorax, which resulted in severe brain damage that ultimately led to her death. Dr. Wang, a pulmonologist, who was the assigned primary physician in charge at the Medical Center at the time of Ms. Amaya=s death, saw her approximately three hours after she died.
Appellants subsequently filed suit against the Medical Center, and Drs. Isaac Chitrit, Stephen Barth, Keith Rose, Charles Gilleland, and Robert Wang, asserting numerous negligence claims against the doctors and hospital.[1] Appellees subsequently filed no-evidence motions for summary judgment, which the trial court granted on September 2, 2003. This appeal ensued.
Issues on Appeal
In two issues, appellants contend the trial court erred (1) in granting appellees= no-evidence motions for summary judgment, and (2) by denying their request to conduct further discovery. We address these contentions in the order presented.
In their first issue, appellants specifically contend the trial court improperly granted the no-evidence summary judgments because deposition testimony and supporting documentation from appellants= expert, Dr. Mark Siegel, supported their contention that Ms. Amaya would have survived with proper monitoring, evaluation, and treatment. In contrast, appellees argue summary judgment was proper because appellants failed to present fact issues concerning breach of the standard of care and proximate cause.
Standard of Review
A no‑evidence summary judgment is equivalent to a pretrial directed verdict, and this Court applies the same legal sufficiency standard of review.[2] In an appeal of a no‑evidence summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences.[3] If the nonmovant produces evidence to raise a genuine issue of material fact, summary judgment is improper.[4] All that is required of the non‑movant is to produce a scintilla of probative evidence to raise a genuine issue of material fact.[5] "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a fact.'"[6] Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair‑minded people to differ in their conclusions."[7] The burden of producing evidence is entirely on the non‑movant; the movant has no burden to attach any evidence to the motion.[8]
Applicable Law
The elements that must be proven for a medical malpractice action are (1) a physician's duty to act according to a certain standard, (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]
Analysis
On December 28, 2000, appellants filed suit, asserting that appellees were negligent in (1) hiring personnel that failed to follow hospital and doctors= orders regarding Ms. Amaya=s treatment, (2) allowing Ms. Amaya to be treated with the wrong antibiotic, thereby delaying proper treatment and allowing her condition to deteriorate, (3) not requiring respiratory therapists to record plateau pressures,[10] and (4) allowing continued ventilation with dangerously high tidal volumes, despite rising peak airway pressures.
In appellees= no-evidence motions for summary judgment, they argue that no evidence existed to support the breach and proximate cause elements of appellants= negligence claims. In contrast, appellants argue in their response that more than a scintilla of evidence exists to support the breach and proximate cause elements of their claims. As supporting evidence, appellants attached the following: (1) Dr. Siegel=s curriculum vitae; (2) an expert report authored by Dr. Siegel; (3) Dr. Siegel=s deposition testimony; (4) Dr. Wang=s deposition testimony; (5) Ms. Amaya=s nursing charts; and (6) numerous published articles discussing ARDS.
The trial court issued two orders granting appellees= motions for summary judgment. The orders state, in relevant part, as follows:
On the 18th day of August 2003, came on to be heard Defendant Robert Wang, M.D.=s Motion for Summary Judgment. The Court, after considering the Motion, the evidence on file and attached to Plaintiffs= Response . . . is of the opinion that said motion should be GRANTED in all respects. . . It is further, ORDERED, that Defendant Robert Wang, M.D.=s Motion for Summary Judgment is hereby GRANTED and Plaintiff=s [sic] claims against Robert Wang, M.D., are DISMISSED WITH PREJUDICE.
SIGNED this 2 day of Sept., 2003.
On the 18th day of August, 2003, came on to be heard Defendant [Medical Center=s] No Evidence Motion for Summary Judgment . . . The Court, after considering the Motion, the evidence on file and attached to Plaintiffs= Response . . . is of the opinion that said motion all respects [sic] is well-taken and should be GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant [Medical Center=s] No Evidence Motion for Summary Judgment pursuant to rule 166a(i) of the Texas Rules of Civil Procedure is hereby GRANTED and that Plaintiffs should take nothing by this suit for any of their claims and causes of action against Defendant [Medical Center].
It is further, ORDERED, ADJUDGED AND DECREED by the Court that Plaintiff=s [sic] claims and causes of action against Defendant [Medical Center] are hereby dismissed.
IT IS SO ORDERED.
SIGNED this 2 day of Sept., 2003.
In his expert report, dated February 28, 2002, Dr. Siegel stated, in relevant part, the following:
Case Summary
Ofelia Amaya was a 32-year old woman, 7 weeks pregnant, with a history of diabetes, who presented to the Emergency Room of Corpus Christi Medical Center on 12/27/98 complaining of shortness of breath, fever, chills, and cough productive of green sputum. She had had one week of cold symptoms and was treated with amoxicillin without success. . .
Upon admission, azithromycin was ordered for the treatment of presumed bacterial pneumonia, but instead she was given aztreonam for the first day, an antibiotic with no gram-positive coverage and an inappropriate agent to use for the treatment of community acquired pneumonia. The mistake was noted on the second hospital day . . . Her chest radiograph by report showed diffuse bilateral infiltrates consistent with acute respiratory distress syndrome (ARDS). . . Her peak airway pressures gradually rose to dangerously high levels. At approximately 2 PM, Ms. Amaya arrested . . . Despite aggressive resuscitation, she experienced severe anoxic brain damage and the next day became brain dead and expired.
Assessment
The care given to Ms. Amaya was substandard in two key areas. First, despite being admitted for a community acquired pneumonia, she was treated with the wrong drug . . . Because she did not receive appropriate antibiotics in a timely fashion, Ms. Amaya was placed at increased risk for inadequate treatment of her infection and therefore at increased risk for the complications which ultimately developed, specifically ARDS and death. Had she been treated appropriately with antibiotics from the start of her hospitalization, it would have been significantly more likely that these complications would not have occurred.
Second, the increasing airway pressures indicated on Ms. Amaya=s Respiratory flow sheet suggest strongly that she was being ventilated with excessive tidal volumes, placing her at high risk for barotrauma. The tension pneumothorax that caused her cardiac arrest resulted from excessively high tidal volumes. Her physicians and respiratory therapists should have followed standard practice for the mechanical ventilation of ARDS patients and used lower tidal volumes from the start. At the least, they should have decreased the tidal volumes when her peak airway pressures rose to dangerous levels. . . Had they followed standard practice, the tension pneumothorax likely would not have occurred and she would not have suffered a cardiac arrest.
Although the patient surely suffered from the individual errors of mistaken antibiotic dosing and faulty ventilator management, the combination of the two was particularly devastating. To a reasonable degree of medical certainty, I am confident that, Ms. Amaya would have survived if she had been given appropriate antibiotics in a timely fashion along with appropriate ventilator management after she was intubated. The failure to provide standard medical care in these crucial areas contributed substantially to her death.
. . .
The medical center bears responsibility for:
Allowing Ms. Amaya to be treated with the wrong antibiotic, thus delaying appropriate treatment for her pneumonia and allowing her condition to deteriorate. Delivering the wrong antibiotic despite a clear order from the physician was a gross deviation from the standard of care. Not requiring its Respiratory Therapists to record plateau pressures, a standard respiratory parameter used to ensure that patients are not ventilated with dangerously high tidal volumes; and Allowing continued ventilation with dangerously high tidal volumes despite rising peak airway pressures, thus increasing the risk that she would have the pneumothorax that led to her demise.
. . .
Dr. Robert Wang, Pulmonologist. The standard of care dictates that Dr. Wang should have been monitoring the patient closely in the ICU and should have been aware that the airway pressures recorded on the Respiratory Therapy flow sheet indicated the patient was in grave danger. Had he addressed the abnormalities appropriately, the patient=s ventilator settings would have been adjusted by decreasing tidal volumes, which would have greatly decreased the patient=s risk for developing the pneumothorax, which led to her death. As a Pulmonologist, he should have been particularly concerned about the airway pressures noted on the Respiratory Therapist=s Documentation sheet. . .
In his deposition, Dr. Siegel testified numerous times that Dr. Wang Ashould have seen her a lot earlier than he actually did . . .@ Dr. Siegel further stated that Athe physicians taking care of Mrs. Amaya failed to evaluate her.@ He also opined that the Adisease process that led to the high airway pressures that led to her pneumothorax had the potential for interventions that could have taken place which could have saved her life.@ According to Dr. Siegel, Athe physicians either didn=t pay any attention to the airway pressures or just assumed that there was nothing that could be done about them. Okay. And neither of those would be standard care.@
Finally, Dr. Siegel stated the following:
My point is that a reasonable physician who was called to evaluate a patient with high airway pressures would have the opportunity to do an evaluation, which in turn, in most likelihood B in all likelihood would lead to an intervention that would save this patient=s life. Okay. Now, we don=t know that because the evaluation wasn=t done, so there=s no way to answer that question for sure . . . because substandard care occurred here, and there was no evaluation. . .
Regarding causation, Dr. Siegel stated, ASo I think to a reasonable degree of probability, the failure to assess the high airway pressures was a proximate cause in this patient=s death.@ Dr. Siegel also confirmed, based upon reasonable medical probability, that the way Ms. Amaya Awas managed@ caused her death. Dr. Siegel further stated,
As I=ve said many times, the complications that ultimately ensued were multiple . . . [a]nd my concern about this case is that when the airway pressures went up and compliance fell, that nobody did an evaluation to see whether there were any correctable problems that could be addressed. And my feeling is, to a reasonable degree of medical probability, that had an evaluation been done in response to the increasing airway pressures, that they would have found a correctable problem.
Viewing the evidence in the light most favorable to the non‑movant, evidence tends to support the occurrence of a breach of the standard of care. Evidence also tends to support that the breach of the standard of care proximately caused Ms. Amaya=s death. After a careful review of all the evidence, we conclude appellants produced far in excess of a scintilla of evidence to support the breach and causation elements of their negligence claims.[11] Therefore, the trial court abused its discretion in granting the no-evidence summary judgments in favor of the Medical Center and Dr. Wang.[12] Accordingly, we sustain appellants= first issue.
In their second issue, appellants contend the trial court improperly denied them an opportunity to conduct further discovery. Specifically, appellants sought to depose the nursing staff to develop evidence relating to monitoring of the ventilation equipment. However, appellants never brought this request to the trial court=s attention.[13] As such, they failed to preserve this issue for appellate review. Accordingly, their second issue is overruled.[14]
Conclusion
Because the summary judgment evidence presented by appellants raised material issues of fact, we hold the trial court erred in granting summary judgment in favor of appellees. Accordingly, we reverse the trial court=s orders granting summary judgment in favor of the Medical Center and Dr. Wang and remand this case to the trial court for further proceedings.
LINDA REYNA YAÑEZ,
Justice
Memorandum opinion delivered and filed
this the 8th day of June, 2006.
[1] Appellants non-suited all doctors, other than Dr. Wang and the Medical Center.
[2] City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 772 (Tex. App.BCorpus Christi 2003, no pet.) (op. on reh'g).
[3] City of Keller, 168 S.W.3d at 807; Ortega, 97 S.W.3d at 772.
[4] Tex. R. Civ. P. 166a(i).
[5] Ortega, 97 S.W.3d at 772.
[6] Id. (quoting Kindred v. Con/Chem Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
[7] Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).
[8] Tex. R. Civ. P. 166a(i).
[9] Day v. Harkins & Munoz, 961 S.W.2d 278, 280 (Tex. App.BHouston [1st Dist.]1997, no pet.).
[10] The recording of plateau pressures ensures patients are not ventilated with dangerously high tidal volumes.
[11] Tex. R. Civ. P. 166a(i); Day, 961 S.W.2d at 280; Ortega, 97 S.W.3d at 772.
[12] Tex. R. Civ. P. 166a(i); Day, 961 S.W.2d at 280; Ortega, 97 S.W.3d at 772.
[13] See Tex. R. App. P. 33.1.
[14] Id.