Mercy Regional Medical Center a/k/a Mercy Hospital of Laredo (correctly known as Mercy Hospital of Laredo d/b/a Mercy Regional Medical Center), (APPELLANT/CROSS-APPELLEE) v. Gustavo Rodriguez and Brenda Rodriguez, Individually and As Next Friends of Juan De Dios Rodriguez, Minor Child, (APPELLEES/CROSS-APPELLANTS); Rebecca Uribe-Garza, M.D. and The Laredo Medical Group, (APPELLEES ONLY)--Appeal from 111th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-06-00386-CV
MERCY REGIONAL MEDICAL CENTER d/b/a Mercy Hospital of Laredo,
Appellant
v.
Gustavo RODRIGUEZ and Brenda Rodriguez,
Individually and as Next Friends of Juan De Dios Rodriguez, Minor Child,
Appellees
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2001-CVQ-001641-D2
Honorable Raul Vasquez, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Rebecca Simmons, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: February 20, 2008

 

REVERSED AND RENDERED

Mercy Regional Medical Center d/b/a Mercy Hospital of Laredo appeals a final judgment in a medical negligence case. Because we hold that the evidence is legally insufficient to support the jury's causation finding, we reverse the trial court's judgment and render a take nothing judgment in favor of Mercy Hospital. (1)

Background

On August 27, 1999, Juan De Dios Rodriguez was born twelve weeks premature in a breech position. J.D. weighed just over two pounds at birth and was diagnosed with typical disorders associated with premature birth, including a congenital cardiac abnormality, intrauterine growth retardation, and respiratory distress syndrome. Dr. Francisco Cervantes ordered that J.D. be sedated and placed on a ventilator in the neonatal intensive care unit for one week. Fourteen hours after J.D. was born, a head ultrasound was performed and revealed no sign of an Intraventricular Hemorrhage ("IVH"), or bleeding on the brain.

On August 29, 1999, J.D. received a transfusion of packed red blood cells because his hematocrit, the blood volume occupied by red blood cells, was low. Some experts opined that J.D. likely had an IVH at that time because his hematocrit level did not sufficiently rise after the transfusion.

On August 30, 1999, Dr. Rebecca Uribe-Garza took over J.D.'s care and determined that he could be extubated (taken off the ventilator). As a result, Dr. Uribe-Garza placed J.D.'s sedation on hold, and the nurses began weaning J.D. off the ventilator.

On August 31, 1999, Dr. Uribe-Garza ordered the extubation. J.D.'s chart following the extubation showed that he was "active" which most experts agreed was a positive finding. An echocardiogram was performed on J.D. at 1455 (2:55 p.m.), and J.D. was described as being "very active." (2) At 1510 (3:10 p.m.), a nurse discovered that J.D. was bleeding from his umbilical artery catheter ("UAC") line. The nurse's note states that the tubing was disconnected and J.D. lost approximately 20 ccs of blood. The incident was reported to Dr. Uribe-Garza who ordered a second transfusion of red blood cells over a three-hour period.

On September 1, 1999, a second head ultrasound was performed and revealed that a Grade IV IVH had developed, which is the most critical category of IVH. On September 7, 1999, J.D. went into cardiac arrest. J.D. was resuscitated and continued to be cared for at Mercy Hospital for three weeks. After he was diagnosed with hydrocephalus, a build-up of fluid on the brain, J.D. was transferred to University Hospital in San Antonio. Although discontinuation of support was discussed with J.D.'s parents at one point, J.D. recovered and was discharged on November 8, 1999.

J.D.'s parents sued Dr. Uribe-Garza and Mercy Hospital for damages sustained by J.D. as a result of their negligence. A jury found only Mercy Hospital to be negligent and awarded J.D. $7,470,000.00 in damages.

Discussion

The Texas Supreme Court revisited the legal sufficiency standard and scope of review in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). The court concluded that whether an appellate court starts its review of a verdict for legal sufficiency "by considering all of the evidence or only part," the court should "arrive at the same point" if the standard is properly applied. Id. at 807. "Under either scope of review, appellate courts must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Id.

The Texas Supreme Court began its discussion of the legal sufficiency standard by listing six non-exclusive categories of circumstances in which contrary evidence must be considered in a legal sufficiency review. Id. at 810-818. One of those categories is circumstantial equal evidence. Id. at 813. "In claims or defenses supported only by meager circumstantial evidence, the evidence does not rise above a scintilla (and thus is legally insufficient) if jurors would have to guess whether a vital fact exists." Id. "When the circumstances are equally consistent with either of two facts, neither fact may be inferred." Id. "Drawing an inference based on meager evidence [is] unreasonable whether or not the reviewing court consider[s] the opposing inferences" but "it does no harm to note [the opposing inference's] presence." Id. at 814. "[W]hen death or injury occurs without eyewitnesses and only meager circumstantial evidence suggests what happened, we cannot disregard other meager evidence of equally likely causes." Id. at 814. "Thus, when the circumstantial evidence of a vital fact is meager, a reviewing court must consider not just favorable but all the circumstantial evidence and competing inferences as well." Id.

In the underlying trial, the only expert who opined that the Mercy Hospital nurses were negligent was Beth Carol Diehl-Svrjcek, a neonatal nurse. Although Diehl-Svrjcek listed various actions by the nurses that she found to be negligent, Diehl-Svrjcek was not qualified to testify as to what actions proximately caused J.D.'s injuries. See Costello v. Christus Santa Rosa Health Corp., 141 S.W.3d 245, 248-49 (Tex. App.--San Antonio 2004, no pet.). The plaintiffs' experts who were qualified to testify with regard to causation opined that the leakage of blood from the UAC line caused J.D.'s IVH and subsequent complications. All of the witnesses agree that the leakage was the result of the UAC line disconnecting. Mercy Hospital, however, contends that the evidence is legally insufficient to support the jury's finding that any negligent act by the nurses caused the UAC line to disconnect or that the disconnection of the UAC line was foreseeable.

The two elements of proximate cause are cause in fact (or substantial factor) and foreseeability. IHS Cedars Treatment Center of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Id. at 799. Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Neither causation element can be satisfied by mere conjecture, guess, or speculation. Mason, 143 S.W.3d at 798.

Diehl-Svrjcek testified that the nurses were negligent in failing to secure the UAC line which caused it to disconnect. Diehl-Svrjcek stated that her information that the disconnect was caused by a cap being unsecured was from the deposition testimony of Dr. Uribe-Garza and the discharge summary. Diehl-Svrjcek understood that the discharge summary was dictated almost three months after J.D. was discharged and that no nurse or physician noted the cap being loose in the medical records contemporaneously with the events.

In her deposition, Dr. Uribe-Garza testified:

A. Oh. And then, they said, The little cap was loose, so therefore - because, see, we have Luer Lock, and then you have the tubing, and sometimes it gets loose, while you are doing the blood gases. You have to be careful with that. And, if it gets loose, and if he kicks it, well, he is going to bleed.

 

Q. All right. That's the description that was given to you by the nurses, wasn't it?

 

A. If I recall correctly, yes.

 

During trial, Dr. Uribe-Garza testified:

Q. [In the discharge summary], [y]ou said, "The baby had disconnected his umbilical artery catheter due to kicking and being very rowdy." Do you still hold that belief?

 

A. I don't know exactly what happened, but I could assume, that it was - it was because of the kicking, but I was not there to see the actual event.

 

Q. Have you seen any records that indicate that the child kicked it out?

 

A. No, I haven't seen any. I write it, or whatever, or by memory.

 
*******

Q. Now, let me go back to something else. You are not trying to tell this jury, that the child kicked the umbilical artery - artery catheter out, are you?

 

A. Like I said, it was a hypothesis.

 

Q. Well, the nurses dispelled that hypothesis for you, didn't they, by telling you the cap came off? Or, do we need to go back over that testimony?

 

A. It was the testimony that they said, yes.

 

Q. So, this stuff about him kicking out the catheter, that's not the facts in this case, is it?

 

A. No, it's not. I mean, obviously, the nurses are the ones that were there and they saw it.

 

During cross-examination, Dr. Uribe-Garza later testified:

 

Q. I want to talk a little bit about the nature of the disconnect. I believe, counsel asked you yesterday, and you said something about, talking with the nurse about the cap - tell the jury, what you actually remember about that conversation?

 

A. If I remember correctly, at that time, they were pretty upset, and reasonably so. We all were. I wasn't happy. And, I don't know if they said, that maybe the baby kicked it or not - or then, they figured out maybe that the Luer Lock - or whatever - got disconnected. I really don't recall, Bruce. Those are, I guess, are just like, theories at the time.

 
******

Q. . . . . Are you aware of any other disconnects, involving any of Dr. Cervantes' connections?

 

A. At Mercy, I think that we only had one other. But I don't recall if it was because of that or not.

 

Q. Okay. Over what period of time are you talking about, only one other disconnect?

 

A. Since, 1988 to then - since I started neonatology in '79 as an attending. I probably had a maybe a total of two or three.

 

Q. Let me just ask you, as a doctor who attends to these babies, is there any way that a physician can foresee that a baby may hook a tube and disconnect it?

 

A. Oh, no. I wouldn't want anything like that to happen. That's just awful, you know.

 

Q. Is there anyway a nurse could foresee that would happen?

 

A. No.

 

The nurse's note states "bleeding from UAC line - tubing disconnected." Dr. Uribe-Garza's progress note states, "I was called that baby Rodriguez had disconnected the UAC line." Contrary to Diehl-Svrjcek's testimony, Dr. Uribe-Garza's discharge summary states "The baby had disconnected his umbilical artery catheter due to kicking and being very rowdy."

One of the plaintiffs' experts, Curtis Pickert, M.D., a pediatrician practicing in pediatric critical care, testified that he did not see any evidence in the medical records outside of the hypothesis that the baby kicked the catheter out. Pickert later testified that it was "very unclear what even disconnected it." Pickert also stated he had only experienced a disconnect once in his career, and he did not believe the disconnection could be foreseen.

Daniel Hall, M.D., an expert for the defendants, testified that neither Dr. Uribe-Garza nor the nurses could have foreseen the disconnection occurring. Theodore J. Caliendo, an expert for the plaintiffs, also testified that J.D. likely caused the disconnection, stating, "What probably happened, more likely than not, he - probably - his hand reached for the catheter, because he was - it was moving a lot. And, anytime you put something in the hand of an infant, they grasp it, and then he pulled on it. Can I say for sure, that is what happened? No, not from the record." Caliendo later responded that no one could have predicted that J.D. would disconnect the catheter.

Another plaintiffs' expert, Robert J. Lerer, M.D., testified that the disconnection was unobserved. Lerer agreed that J.D. kicking was the most common explanation for the disconnect barring someone coming in and doing it by error or by commission. Lerer was then asked, "There really is no explanation for the disconnection, as to how it occurred?" Lerer responded, "Sure." Lerer agreed that the most likely surmise is that J.D. caused the disconnect, and stated disconnections do occur. Lerer explained, "If you have a baby, that you are following, with an umbilical artery catheter, dislodgement of the catheter, although a rare event, does occur, and it occurs in babies, who have never received any sedation and who have not been on a ventilator. I have seen that happen before."

Finally, Marilyn Escobedo, M.D., an expert for the defendants, testified that the assumption was that J.D. dislodged the tubing with his foot or something, but Escobedo stated that there were other ways that could have happened including during the echocardiogram procedure. Escobedo continued,

So, you know, it's possible that there was some other movement of the baby that could have occurred. We don't know. Nobody observed it, so we're - we're entirely in the speculative range to say what happened but, you know, sometimes, when babies are - when they are lifted to have an x-ray cassette placed under them, that the catheter is caught and dislodged. It may be that somebody stumbles over the - the long tubing that goes to the pump, somebody moves the incubator and stretches the tubing out. I mean, there are just lots of ways, in an Intensive Care Unit, that a - a catheter can become dislodged and it's one of the things that we constantly worry about.

 

Based on the evidence presented, no one was present when the disconnection occurred, as a result, the record contains no direct evidence of the cause of the disconnect. The two hypotheses presented in the record are that either the nurses did not sufficiently secure the line or J.D.'s kicking caused the disconnect. The disconnect occurred "without eyewitnesses and only meager circumstantial evidence suggests what happened;" therefore, "we cannot disregard other meager evidence of equally likely causes." City of Keller, 168 S.W.3d at 814. From the record presented, the jury was required to guess what happened in a situation that rarely occurs. Because neither cause in fact nor foreseeability can be satisfied by mere conjecture, guess, or speculation, Mason, 143 S.W.3d at 798, the evidence is legally insufficient to support the jury's finding on causation.

Conclusion

The judgment of the trial court is reversed, and judgment is rendered that the appellants take nothing on their claims against Mercy Hospital.

Alma L. L pez, Chief Justice

1. We do not address any of the other issues presented by Mercy Hospital. See Tex. R. App. P. 47.1 (noting opinion must be as brief as practicable and only address issues necessary for final disposition).

2. The nurses never documented J.D.'s condition as agitated or irritated, and this is the only entry documenting J.D. as being "very active."