concurring.
I concur with the opinion and judgment of the court. I write separately, however, to emphasize two points that are determinative in this case.
Laredo Medical Group has strongly argued in this appeal that it never stipulated to vicarious liability for the acts of Dr. Diaz. The court has held that the stipulation attempted was ambiguous, and thus the trial court was required to disregard the stipulation, (at 175). Based on the very strong reaction of both the trial court and plaintiffs’ counsel when Laredo Medical Group argued at a post-trial hearing that no vicarious liability jury issue had been submitted and that no stipulation had been made by LMG, it is evident that indeed some stipulation was made. The record bears this out; the stipulation was that Laredo Medical Group would honor its liability as established by its contract with Dr. Diaz. That contract did not extend LMG’s liability beyond the last day of Dr. Diaz’s employment with LMG. Accordingly, LMG would be liable for Dr. Diaz’s negligent conduct that occurred while he was still employed by the group — in short, for negligence occurring during his prenatal care of Gloria Jaimes. In that regard, I believe the stipulation is clear and unambiguous.
The testimony of Dr. Gerald Bullock establishes that Dr. Diaz was negligent in his pre-natal care of Gloria, and that such negligence allowed the baby she was carrying to grow to such a large size and weight. Gloria argues that there can be more than one proximate cause of an injury and that the deficient pre-natal care was but one of at least two causes of Luis’ injury. See McShane v. Bay Area Healthcare Group, Ltd., 174 S.W.3d 908, 921 (TexApp.-Corpus Christi 2005, pet. filed) (“It is well settled in Texas that there may be more than one proximate cause for purposes of negligence.”); see also Comm. ON PATTERN JURY CHARGES, STATE Bar OF Tex., Texas Pattern Jury Charges-General Negligence PJC 2.4, 3.2 (2003). Accordingly, she argues that the jury’s verdict can be sustained. While in theory this is correct, the testimony does not support the conclusion reached by Gloria. Each medical expert who testified, including Dr. Bullock, stated that timely performance of a c-section would have avoided the injuries and damages to Luis. Thus, regardless of Luis’ size, he would not have sustained the brachial plexus injury had a c-section been performed. Without using the term “sole proximate cause” or “superceding cause”, the net effect of the experts’ testimony is that the failure to perform the surgery was ultimately a sole or superceding cause of Luis’ injuries. See generally First Assembly of God, Inc. v. State Utils. Elec. Co., 52 S.W.3d 482, 493 (Tex.App.-Dallas 2001, no pet.) (contrasting the concepts of “a proximate cause” with “a sole proximate cause”). Since the failure to perform a c-section occurred after Dr. Diaz ended his affiliation with LMG, the group is not liable for this negligence under its stipulation. Accordingly, I must concur with the panel’s decision.