Morrell v. Finke

*292ANNE GARDNER, Justice,

dissenting opinion.

I respectfully dissent because there is no evidence that any breach of the standard of care either by the nurses or by Dr. Finke was a cause-in-fact of Madeline’s injuries.

DR. FINKE

The majority opinion fails to bridge the “fatal gap” in the evidence of cause-in-fact. Dr. Ater’s opinions on causation were never linked to any breach of the standard of care by Dr. Finke as testified to by Dr. Rice. The opinion of Dr. Rice was that Dr. Finke was negligent in failing to decide on a C-section by 7:27 p.m. with delivery by 7:35 p.m. But Dr. Ater testified that all of Madeline’s injuries occurred during the ten or fifteen-minute period of the forceps delivery and were proximately caused by the trauma of the forceps delivery, combined with cumulative hypoxic-ischemic insults that had been occurring throughout the afternoon.1

Despite the majority’s efforts to interweave the opinions of Plaintiffs’ experts on standard of care and causation into a consistent theory, those experts were “ships that passed in the night”2 that never spoke in passing, it is not our role as a reviewing court to “borrow from each expert pieces of opinion that seem to match, tie them together in an ill-fitting theory ... and then argue that this is some evidence to support the verdict.” Gen. Motors Corp. v. Iracheta, 161 S.W.3d 462, 472 (Tex.2005). I believe the majority has done just that.

Neither Dr. Rice nor Dr. Ater testified that, if Dr. Finke had delivered Madeline by C-section in the time frame of 7:27 p.m. to 7:35 p.m., all or even some of Madeline’s injuries would have been prevented. Dr. Ater only said that he believed Madeline “would have done a lot better if they could have delivered her by a C-section right then.” That opinion does not tell us whether a C-section would have avoided all or some or any of Madeline’s injuries. Dr. Ater’s speculative and conclusory opinion is not competent evidence that Dr. Finke’s negligence was a substantial factor without which Madeline would not have suffered the neurological injuries and damages that she ultimately sustained. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995) (holding medical testimony failing to establish more than fifty percent chance of recovery but for negligence not legally sufficient to establish causation); Bradley v. Rogers, 879 S.W.2d 947, 955-56 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (characterizing opinion that a patient presenting as claimants did generally will be “be better off’ if surgery is not delayed as speculation and no evidence of proximate cause).

The majority also incorrectly characterizes Dr. Rice’s opinion testimony. According to the majority, Dr. Rice opined that “from 7:27 onward, Madeline was so ‘stressed’ that the standard of care from that point forward ‘absolutely’ required a C-section to avoid further stressing her through a vaginal delivery.” This is not what he said. Instead, he agreed only generally that stress related to a problem with the umbilical cord is a reason for a physician to avoid a forceps delivery and *293that a forceps delivery would not have been appropriate at 7:27 p.m., while Madeline was at “zero” station. Dr. Rice explained that there “would be a very high chance at this high station ” that Madeline would not be able to tolerate “this difficult of a forceps delivery.” [Emphasis added.] He never addressed whether the forceps delivery was appropriate at the plus two station, where Dr. Finke testified the baby’s head had descended when she proceeded with the forceps delivery at 7:50 p.m.

The experts agreed that the cause of variable and late decels such as those noted on the fetal monitor strip was compression of the umbilical cord, indicating reduction in the supply of oxygen to the baby or “hypoxia.” Additionally, it was undisputed that the forceps delivery was “traumatic,” with the baby in the difficult OP (face-up) position and the sudden development of the life-threatening condition of shoulder dystocia. None of those conditions was attributed by any expert to any negligence of any of the defendants. And while Dr. Ater testified that all of Madeline’s injuries occurred during the “traumatic forceps delivery,” he did not say nor did any other expert testify that Madeline’s injuries were caused by a breach of the standard of care in the forceps delivery.

To summarize, while there is evidence that Dr. Finke deviated from the applicable standard of care in failing to perform a timely C-section by 7:27 p.m., there is no evidence that her failure to perform a timely C-section was a cause-in-fact of Madeline’s injuries. The only competent expert testimony establishing the cause of Madeline’s injuries is the opinion of Dr. Ater that they were caused during the forceps delivery. Yet, no expert testified that Dr. Finke breached the standard of care for performing a forceps delivery.

Consequently, there is no evidence supporting the essential “link” in the causal chain between any conduct of Dr. Finke for which there is evidence of negligence and the injuries suffered by Madeline. See, e.g., Roark v. Allen, 633 S.W.2d 804, 811 (Tex.1982) (holding that, although there was evidence of breach of the standard of care by defendant physician in delivering the baby by forceps, there was no evidence of proximate cause where plaintiffs’ expert testified only that baby’s skull was fractured “as a result of the forceps slipping” but no expert testified that improper application of the forceps caused them to slip, so that a jury could not infer, from that evidence alone, the cause of the forceps slipping); see also Arlington Mem’l Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922-23 (Tex.App.Fort Worth 1999, pet. denied) (reversing judgment against hospital based on negligence in allowing reuse of “phaco tip” absent expert téstimony that negligence in allowing such reuse was cause of corneal burn); Duff v. Yelin, 751 S.W.2d 175, 177 (Tex.1988) (holding evidence patient suffered nerve injury insufficient absent proof injury caused by improper positioning during surgery). Therefore, I would hold that there is no evidence of cause-in-fact as to Dr. Finke.

THE NURSES

Contrary to the majority’s conclusion that there was “direct” medical testimony of causation as to the nurses’ negligence, the trial court sustained defense objections to testimony on causation from Nurse La-Mont, the only expert Plaintiffs offered on causation as to. negligence of the nurses. While I agree with the majority that Dr. Ater could have testified regarding cause-in-fact as to the nurses’ negligence, the fact is that he did not. The only expert testimony was to the contrary, from Dr. VanDorsten and Dr. Finke — that the nurs*294es’ conduct was not a proximate cause of Madeline’s injuries.

The majority opinion combines Nurse LaMont’s testimony regarding numerous breaches of the nursing standard of care with Dr. Ater’s testimony that continued, worsening hypoxic-ischemic insults throughout the day “set up” Madeline for PVL. But there was no expert opinion connecting the continued, worsening hy-poxic-ischemic insults to any breaches of the nurses’ standard of care.

The majority’s holding that the jury could find causation from the nurses’ negligence absent expert opinion or a traceable chain of causation is necessarily a holding that the lay jury could infer the essential causal link on the basis of general experience and common sense. See Lenger. v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 708 (Tex.1970) (limiting instances where lay inference may properly be allowed to determine causation). I disagree that this is such a case where the causal link may be established absent direct expert opinion or guiding scientific principles established by expert testimony. The only testimony of the experts was contrary to any such inference.

Plaintiffs have not even, argued the theory advanced by the majority.3 Their argument on appeal is that the nurses caused Madeline’s injuries, not by allowing hypoxia to develop during labor so as to cause Madeline to be “set up,” but by failing to prevent the forceps delivery. Plaintiffs contend that the nurses should have notified Dr. Finke of the 7:15 p.m. decel under the theory that Dr. Finke would then have decided to perform a C-section by 7:27 p.m., so that there would have been no forceps delivery and, consequently, no permanent neurological injuries. But there is no evidence that the nurses’ failure to notify Dr. Finke of the 7:15 p.m. decel caused or contributed to her decision by 7:27 p.m. not to perform a C-section. In fact, Dr. Finke’s testimony to the contrary, that she would not have made the decision to perform a C-section at 7:27 p.m., is undisputed.

Any negligence of the nurses in failing to recognize and take action on the baby’s hypoxic events or to notify Dr. Finke of the critical 7:15 p.m. decel was too remote and attenuated by Dr. Finke’s independent decision.4 See, e.g., Wyeth-Ayerst Labs. v. Medrano, 28 S.W.3d 87, 95 (Tex.App.-Texarkana 2000, no pet.) (holding plaintiff failed, as matter of law, to prove lack of adequate information from manufacturer of Norplant caused her injuries where nurse practitioner testified that information would not have affected her decision to prescribe contraceptive to plaintiff); Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 817-18 (5th Cir.1992) (applying Mississippi law) (holding regardless of plaintiffs expert’s opinion that reasonable physician would not have prescribed drug *295if earlier adequate warning had been given, “undisputed historical evidence” that no physician changed his or her practice after adequate information was released by manufacturer precluded reasonable possibility that adequate warning would have prevented plaintiffs injury, and possibility that defendant physician would not have prescribed drug too remote to raise issue of fact as to causation).

The overarching question with respect to the nurses’ liability is whether some evidence establishes a reasonable medical probability that one or more specific breaches of the standard of care by the nurses alleged and proved was a “substantial factor” in bringing about Madeline’s injuries, and “without which her injuries would not have occurred.” See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.1991); see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Any negligence of the nurses was too attenuated from the resulting injuries to be a substantial factor without which the injuries would not have occurred.

Plaintiffs’ theory, as accepted by the majority, is that if there had been a C-section delivery then there would have been no forceps delivery and, hence, no birth trauma. This is not enough. “In order to be [the proximate cause] of another’s harm, it is not enough that the harm would not have occurred had the actor not been negligent.... [T]his is necessary, but is not of itself sufficient. The negligence must also be a substantial factor in bringing about the plaintiffs harm.” (emphasis added.) IHS Cedars Treatment Ctr. of Desoto v. Mason, 143 S.W.3d 794, 799 (Tex.2004) (quoting Restatement (Second) of Torts § 431, cmt. a (1965)); see also Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995); Lear Siegler, Inc., 819 S.W.2d at 472.5

To sum up, there is no evidence in this case that if the nurses had acted differently, the result would have been different. See Lenger, 455 S.W.2d at 706. Absent such evidence, the jury was left to speculate that the nurses’ conduct caused Madeline’s injuries. See id. I would hold, therefore, that there is legally insufficient evidence that any negligence of the nurses was a cause-in-fact of Madeline’s injuries and damages.

CONCLUSION

Our sympathies are naturally with this family who must live with the tragedy and burdens of a child with cerebral palsy and mental retardation. But it is not for this court, under the guise of the deferential standard of review favoring the jury’s findings, to re-invent the case that was tried. The record compels the conclusion that there is legally insufficient evidence to support the jury’s finding of causation as to any negligence of the nurses or Dr. Finke. Consequently, I would reverse and render judgment that Appellants and Cross-Appellees Robert and Donna Mor-rell, individually, and as next friends for the minor daughter, Madeline Morrell, take nothing against all defendants.

CAYCE, C.J., joins.

. Dr. Ater testified on causation before Dr. Rice testified on the standard of care as to Dr. Finke. Neither expert heard the testimony of the other. Dr. Ater admitted that he was not even aware of Dr. Rice's opinion that it was Dr. Finke’s failure to perform a C-section by 7:27 p.m. that breached the medical standard of care until that was pointed out to him on cross-examination.

. From "The Theologian's Tale,” by Henry Wadsworth Longfellow.

. In their original brief as appellants, the nurses raised complaints of no evidence of causation regarding the claims of negligence now relied upon by the majority, including failing to chart events occurring during labor and delivery or by failing to intervene with appropriate measures during labor. Plaintiffs did not respond to those arguments but, instead, focused in this court solely on the theory that the nurses failed to prevent the forceps delivery. Plaintiffs have thus abandoned their theories of liability based upon the grounds of negligence urged by the majority. See Wells Fargo Bank Tex., N.A. v. Barton, 100 S.W.3d 455, 458 (Tex.App.-San Antonio 2003, no pet.); In re J.G.W., 54 S.W.3d 826, 832 (Tex.App.-Texarkana 2001, no pet.).

. Although Nurse LaMont testified that the nurses should have "pushed” Dr. Finke into a decision, Plaintiffs concede they are not contending that the nurses should have insisted that Dr. Finke perform a C-section, rather than proceeding to a forceps vaginal delivery. Indeed, Nurse LaMont admitted she was not suggesting that they should have told Dr. Finke what decision to make.

. The Restatement uses the word "cause” in "the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called 'philosophic sense,’ which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called ‘philosophic sense,' yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.” Lear Siegler, Inc., 819 S.W.2d at 472 (quoting from Restatement (second) of torts, §431, cmt. a).