Debra C. Gunn, MD, Obstetrical and Gynecological Associates, P.A. and Obstetrical and Gynecological Associates, PLLC v. Andre McCoy, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person ( 2015 )

Reversed and Remanded, Suggestion of Remittitur, and Opinion filed
December 22, 2015.
In the
Fourteenth Court of Appeals
NO. 14-14-00112-CV
DEBRA C. GUNN, MD, OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES, P.A., AND OBSTETRICAL AND GYNECOLOGICAL
ASSOCIATES, PLLC, Appellants
V.
ANDRE MCCOY, AS PERMANENT GUARDIAN OF SHANNON MILES
MCCOY, AN INCAPACITATED PERSON, Appellee
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 352,923-401
OPINION
On September 13, 2004, when she was 37 weeks pregnant, Shannon McCoy
presented at the hospital with severe abdominal pain. Her fetus had died due to
placental abruption, and Shannon was suffering from disseminated intravascular
coagulation (DIC)—a blood clotting disorder. Shannon received blood products,
including fresh frozen plasma (FFP). She delivered the stillborn baby, received
additional blood products, not including FFP, and was transferred to the ICU.
Shannon continued to lose blood. In the ICU, Shannon developed tachycardia, and
her uterus stopped contracting. Shannon underwent a hysterectomy. Just before
the surgery, her heart stopped pumping blood and she went into cardiac arrest.
CPR was performed. Shannon suffered brain damage and seizures, was transferred
to a neurological ICU, and underwent months of therapy. Since September 14,
2004, Shannon has required around-the-clock care as a quadriplegic.
A jury returned a verdict in favor of Shannon through her husband and
guardian, appellee Andre McCoy, in his healthcare liability suit against appellants
Debra Gunn, MD, Obstetrical and Gynecological Associates, P.A., and Obstetrical
and Gynecological Associates, PLLC (together, OGA).1 The trial court signed a
judgment in conformity with the jury’s verdict. Gunn and OGA assail the
judgment in multiple issues on appeal, challenging: (1) the trial court’s granting of
McCoy’s no-evidence summary judgment on comparative negligence; (2) the legal
sufficiency of the evidence to establish that asserted instances of negligent medical
treatment proximately caused Shannon’s brain injuries; (3) the legal sufficiency of
the evidence of Shannon’s past medical expenses; (4) the legal sufficiency of the
evidence of Shannon’s future medical expenses, along with the trial court’s refusal
to allow evidence from Gunn’s and OGA’s life care expert; and (5) the trial court’s
refusal to submit various instructions in the jury charge. Gunn also argues that
OGA’s indemnity claim is not ripe.
Because the evidence is legally insufficient to support the full amounts
awarded for Shannon’s future medical expenses, we suggest a remittitur of
$159,854.00. See Tex. R. App. P. 46.3. We reverse and remand for a new trial;
1
McCoy brought suit against the P.A. entity and later amended to add the PLLC entity.
2
however, if the remittitur is timely accepted, we instead will modify the trial
court’s judgment to change the amount of future medical expenses awarded to
$7,082,549.00, and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Shannon McCoy, a 35-year-old first-time pregnant woman, was under the
prenatal care of Dr. Debra Gunn, an obstetrician and gynecologist (ob/gyn) with
OGA. On the morning of September 13, 2004, Shannon went to her 37-weeks
prenatal appointment. That same evening, Shannon presented at the Woman’s
Hospital (Woman’s) with severe abdominal pain and lack of fetal movement. Dr.
Mark Jacobs, the OGA ob/gyn on call, ordered an ultrasound and discovered that
the fetus had died due to placental abruption. Placental abruption occurs when the
placenta prematurely detaches from the uterine wall. Lab tests indicated Shannon
had developed DIC, a blood coagulation disorder that puts patients at risk for
increased bleeding. DIC can occur as a result of placental abruption. Jacobs
informed Gunn. Jacobs also consulted with a maternal-fetal medicine specialist,
Dr. Brian Kirshon, who recommended Shannon receive FFP and blood. The
nurses documented a verbal order from Jacobs at 2:18 a.m. on September 14 to
provide Shannon with two units of FFP and then two units of packed red blood
cells (PRBCs). Kirshon hoped Shannon’s coagulopathy would resolve
postdelivery—his plan was to recheck her coagulation studies and to give her
blood products as needed. Kirshon also advised being “on the look out for major
postpartum hemorrhage.”
Gunn arrived at the hospital at about 4:00 a.m. on September 14 and took
over Shannon’s care. Gunn consulted with Kirshon, and they agreed on vaginal
delivery. The stillborn baby girl was born at 6:20 a.m. Gunn left Shannon to
perform a scheduled C-section on another patient, returning later. The nurses
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documented a verbal order from Gunn at 7:20 a.m. to provide Shannon with two
more units of PRBCs. Lab results at 7:27 a.m. indicated Shannon had experienced
significant blood loss and her blood was not clotting normally. The nurses
documented a verbal order from Gunn at 9:00 a.m. to provide Shannon with four
units of platelets. Gunn left the hospital at 9:40 a.m. to see patients at her office.
The nurses documented another verbal order from Gunn at 10:15 a.m. to provide
Shannon with two more units of PRBCs, for a total of six units of PBRCs.
However, no verbal order for additional FFP was documented; Shannon received
no additional FFP after having received the two units of FFP ordered by Jacobs at
2:18 a.m. Just before 11:00 a.m., Gunn ordered that Shannon be transferred to the
ICU. Gunn also ordered Lasix to increase Shannon’s low urine output.
At noon, in the ICU, Shannon experienced a large amount of bleeding upon
uterine massage. Shannon’s uterus was “boggy,” or not contracting down. At
12:10 p.m., Shannon’s pulse rate was measuring over 200 by EKG. Dr. James
Collins, the cardiologist in the ICU, diagnosed Shannon’s “extremely fast rate” as
paroxysmal atrial tachycardia (PAT). By 12:45 p.m., Shannon’s uterus remained
boggy, she passed another large amount of blood, and she became agitated. Her
oxygen saturation level was at 72%, and her pulse and respiration rate were
elevated. Lab results at 1:16 p.m. indicated that her blood still was not clotting
normally. Gunn returned to Shannon’s bedside at 1:28 p.m. Despite medications
to help her uterus contract, Shannon had developed uterine atony, which occurs
when the uterus can no longer “clamp down” and leads to heavy bleeding. Gunn
arranged for a possible hysterectomy and ordered a “blood emergency.”
Shannon entered the operating room just after 2:00 p.m. Upon starting
anesthesia, Shannon went into ventricular fibrillation (v-fib), where her heart was
unable to pump blood. The anesthesiologists performed CPR for several minutes.
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Eventually, Gunn performed the hysterectomy. Shannon experienced seizure
activity that evening; an EEG showed severely depressed cerebral function, and
Shannon’s pH level based on her blood gases indicated she was acidotic resulting
from a lack of oxygen.
Shannon was transferred to the neurological ICU at St. Luke’s Hospital.
Shannon underwent months of rehabilitation at The Institute for Rehabilitation and
Research (TIRR). Shannon has profound neurocognitive and physical deficits, and
since September 14, 2004, has required 24-hour care.
In July 2006, Shannon’s husband Andre McCoy, as her permanent guardian,
filed suit against Gunn, Jacobs, OGA, Collins, and Woman’s. Jacobs and
Woman’s settled their claims and were dismissed. Collins was nonsuited.
Before trial, McCoy filed a no-evidence motion for summary judgment as to
the affirmative defense of comparative responsibility, arguing that there was no
evidence the treating labor and delivery nurses were negligent or that any alleged
negligence proximately caused Shannon’s brain damage. The trial court held a
hearing and granted summary judgment.
The jury returned an 11-to-1 verdict in favor of McCoy as to Gunn’s
negligence and awarded damages of $10,626,368.98. The award included past
medical care expenses of $703,985.98 and future medical care expenses of
$7,242,403.00. Pursuant to OGA’s election of a dollar-for-dollar settlement credit,
which Gunn joined, the trial court applied an offset of $1,206,773.50 in its final
judgment. The trial court also determined that OGA was vicariously liable for
Gunn’s negligence and that OGA was entitled to indemnity from Gunn.
Gunn and OGA argue several issues.2 OGA contends: (1) there is no
2
Gunn adopted OGA’s arguments as to OGA’s third, fourth, and fifth issues. OGA
5
evidence of causation; (2) the trial court should not have granted summary
judgment as to the hospital’s negligence or should have granted Gunn’s and
OGA’s request for continuance; (3) the court should not have excluded Dr. Helen
Schilling’s testimony regarding Shannon’s future medical expenses; (4) the court
should have submitted various jury instructions; and (5) the evidence is legally and
factually insufficient to support Shannon’s past medical expenses.
Gunn contends: (1) the trial court erred by granting no-evidence summary
judgment on comparative responsibility; and (2) the evidence is legally insufficient
to support the jury’s finding that Gunn’s negligence harmed Shannon, the award
for Shannon’s past medical expenses, and $159,854 of the award for her future
medical expenses. Gunn further argues OGA’s indemnity claim is not ripe.
II. ANALYSIS
A. Standards of review
In a legal-sufficiency challenge, we consider whether the evidence at trial
would enable a reasonable and fair-minded factfinder to reach the verdict under
review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We “must
credit favorable evidence if reasonable jurors could, and disregard contrary
evidence unless reasonable jurors could not.” Id. We will only reverse the
judgment if: (a) there is a complete absence of a vital fact, (b) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a
mere scintilla, or (d) the evidence establishes conclusively the opposite of the vital
fact. Id. at 810. The record contains more than a mere scintilla of evidence if
reasonable minds could form differing conclusions about a vital fact’s existence.
adopted all of Gunn’s issues and arguments attacking Gunn’s liability to McCoy.
6
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Conversely, the
record is insufficient when the evidence offered to prove a vital fact is so weak as
to do no more than create a mere surmise or suspicion of its existence. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In a factual-sufficiency challenge, we consider and weigh all the evidence,
and can set aside a verdict only if the evidence is so weak or the finding is so
against the great weight and preponderance of the evidence that it is clearly wrong
and manifestly unjust. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,
761–62 (Tex. 2003). We may not substitute our own judgment for that of the
factfinder, even if we would reach a different answer. Maritime Overseas Corp. v.
Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence necessary to
affirm the factfinder’s judgment is far less than that necessary to reverse its
judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616
(Tex. App.—Houston [14th Dist.] 2001, pet. denied).
B. Legally sufficient evidence of proximate cause
We initially address the jury’s finding that Gunn’s negligence proximately
caused the occurrence in question. Both Gunn and OGA contend there is no
evidence of a causal link between Gunn’s asserted negligence and Shannon’s
injuries.
Recovery in a medical malpractice case requires proof to a reasonable
medical probability that the injuries complained of were proximately caused by the
negligence of a defendant. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 860 (Tex. 2009). Proximate cause includes two components: cause-
in-fact and foreseeability. Id. Proof that negligence was a cause-in-fact of injury
requires proof that: (1) the negligence was a substantial factor in causing the
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injury, and (2) without the act or omission, the harm would not have occurred. Id.
The danger of injury is foreseeable if its general character might reasonably have
been anticipated. Doe v. Boys Club, 907 S.W.2d 472, 478 (Tex. 1995).
The causal connection between the defendant’s negligence and the injuries
cannot be based upon mere conjecture, speculation, or possibility. Morrell v.
Finke, 184 S.W.3d 257, 272 (Tex. App.—Fort Worth 2005, pet. denied) (citing
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)). The issue
of causation is usually for the trier of fact in medical malpractice cases. See id.
Generally, expert testimony based on reasonable medical probability is required to
establish proximate cause. See Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010).
Such cases often present a battle of the experts, and it is the sole obligation of the
factfinder to determine credibility and weigh testimony, particularly opinion
evidence. See Morrell, 184 S.W.3d at 282.
Under a legal-sufficiency analysis, an expert’s opinion may constitute no
more than a mere scintilla of evidence if the opinion is not reliable under the same
standards that govern admissibility, is speculative or conclusory on its face, or
assumes facts contrary to the undisputed facts. See Coastal Transp. Co., Inc. v.
Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (considering
legal-sufficiency challenge to expert opinion because the opinion was alleged to be
“conclusory or speculative and therefore non-probative on its face”); Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997) (considering legal-
sufficiency challenge regarding expert opinion under Daubert3 and Robinson4
reliability standards for rule 702 admissibility); Burroughs Wellcome Co. v. Crye,
907 S.W.2d 497, 499–500 (Tex. 1995) (“When an expert’s opinion is based on
3
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–95 (1993).
4
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).
8
assumed facts that vary materially from the actual, undisputed facts, the opinion is
without probative value and cannot support a verdict or judgment.”).
In determining whether expert testimony is reliable, courts may consider the
nonexclusive factors set out in Robinson regarding scientific theories and
techniques, as well as the expert’s experience. Whirlpool Corp. v. Camacho, 298
S.W.3d 631, 638 (Tex. 2009). When the Robinson factors do not readily lend
themselves to a review of the expert’s opinion, expert testimony is unreliable if
there is simply too great an “analytical gap” between the foundational data and the
opinion proffered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
726–27 (Tex. 1998)).
Examination of the expert’s underlying methodology, technique, or
foundational data as part of a reliability challenge is “a task for the trial court in its
role as gatekeeper, and [is] not an analysis that should be undertaken for the first
time on appeal.” Coastal Transp., 136 S.W.3d at 233 (explaining prior holding in
Maritime Overseas, 971 S.W.2d at 412). Therefore, the party must timely make a
reliability objection in order to allow the court the opportunity to conduct such
analysis and to exercise its gatekeeping function. Martini v. City of Pearland, No.
14-11-00111-CV, 2012 WL 1345744, at *4 (Tex. App.—Houston [14th Dist.] Apr.
17, 2012, pet. denied) (mem. op.) (discussing both Robinson factors and Gammill
analytical-gap analysis); see Coastal Transp., 136 S.W.3d at 233. Failure to timely
object therefore waives the reliability issue for appellate review. Martini, 2012
WL 1345744, at *4.
However, such failure to object does not waive a legal-sufficiency complaint
as restricted to the face of the record that the expert’s testimony suffers from fatal
gaps in analysis or assertions which are simply incorrect, or that the expert’s
testimony is conclusory or speculative. See Volkswagen of Am., Inc. v. Ramirez,
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159 S.W.3d 897, 912 (Tex. 2004); Coastal Transp., 136 S.W.3d at 229, 233;
Martini, 2012 WL 1345744, at *4. “[I]f no basis for the opinion is offered, or the
basis offered provides no support, the opinion is merely a conclusory statement and
cannot be considered probative evidence, regardless of whether there is no
objection.” City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009).
Conclusory or speculative opinion testimony “is not relevant evidence, because it
does not tend to make the existence of a material fact more probable or less
probable.” Coastal Transp., 136 S.W.3d at 232 (internal quotation marks omitted).
But just because an expert’s testimony could have been clearer does not render it
speculative or conclusory as a matter of law. See Arkoma Basin Exploration Co.,
Inc. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008); Underwriters
at Lloyds v. Edmond, Deaton & Stephens Ins. Agency, Inc., No. 14-07-00352-CV,
2008 WL 5441225, at *5 (Tex. App.—Houston [14th Dist.] Dec. 30, 2008, no pet.)
(mem. op.).
When evaluating whether an expert’s testimony is speculative or conclusory,
or whether an expert’s opinion contains fatal analytical gaps, we look to the entire
record, not just to the expert’s statements in isolation. Morell, 184 S.W.3d at 279;
United Servs. Auto. Ass’n v. Croft, 175 S.W.3d 457, 464 (Tex. App.—Dallas 2005,
no pet.); see Ramirez, 159 S.W.3d at 910.
On appeal, Gunn and OGA do not challenge Brewer’s methodology that one
unit of blood is equivalent to one point on a hemoglobin test or the foundational
data in the lab results. Instead, Gunn and OGA argue that Brewer’s testimony is
no evidence to support the verdict because her testimony is “speculative and
conclusory on its face” and there are fatal gaps between the data and her proffered
opinion. Therefore, Gunn and OGA’s failure to lodge a reliability objection to this
testimony at trial does not preclude our legal-sufficiency review. See Ramirez, 159
10
S.W.3d at 911–12; Coastal Transp., 136 S.W.3d at 229, 233; Martini, 2012 WL
1345744, at *4.
With these principles in mind, we consider Gunn’s and OGA’s legal-
sufficiency issue.
1. Brewer’s testimony
a. Overview
For the standard of care and deviations alleged against Gunn, McCoy relied
upon the testimony of Brewer, a medical doctor board certified in obstetrics and
gynecology, and in gynecological oncology. Brewer underwent specific training in
handling DIC patients and often serves as a consultant on their treatment. She has
taught “how to handle DIC from placental abruption and other causes” to fellows
and ob/gyns.
Brewer testified to the following:
 The medical condition known as DIC is a blood clotting
disorder that compromises the body’s ability to respond to
active bleeding. DIC can be triggered by placental abruption.
 With placental abruption, there is a “raw bed” of bleeding in the
uterus where the placenta has detached.
 Post fetal demise and prior to delivery, Shannon’s abnormal lab
values—including decreased hemoglobin, platelet count, and
fibrinogen, as well as an increase in prothrombin time—
indicated Shannon’s blood was not coagulating.
 Shannon “absolutely” had DIC and was actively bleeding while
she was under Gunn’s care on September 14, 2004.
 Shannon was Gunn’s first case of a placental abruption with
fetal demise and DIC—so it was unreasonable for her to
discharge Kirshon and handle Shannon’s case alone.
 FFP is “absolutely critical” to resolving the coagulation
problem—plasma helps the body to make the coagulation
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factors that enable the blood to clot.
 Despite replacing blood, without replacing the clotting factors
by administering FFP, a patient will continue to bleed and her
DIC cannot be controlled. That is, “[y]ou can po[ur] the blood
in, but the blood just keeps coming out if you can’t clot it.”
 Shannon continued to lose blood volume because she did not
receive additional FFP. Shannon “absolutely” needed the FFP.
 The standard of care for a physician treating a patient with DIC
requires ordering and administering FFP.
 The standard of care for a physician treating a patient with DIC
requires keeping up with the lab results and performing
repeated calculations relating to approximate blood loss.
 Managing DIC properly requires infusion of blood products and
then checking the appropriate lab result. For example, one
infuses FFP and then checks prothrombin time, then decides to
infuse additional FFP or “sit for a little while and replace the
blood,” then gives the PRBCs and checks the hemoglobin.
 Nowhere did the record reveal that Gunn ever calculated
Shannon’s blood volume loss.
 Three liters of blood is approximately nine units of blood.
 Brewer calculated Shannon’s initial “healthy” blood volume,
based on her weight and status as a pregnant woman, at
approximately 6.7 liters, or 18 units of blood.5
 A reasonably prudent physician “need[s] to stay at least equal”
with the blood loss in a DIC patient like Shannon. Here, the
problem was “all the way along, [Gunn] was behind.”
 Calculating a patient’s percentage of blood volume loss is even
more difficult without “the labs to go by.”
 No labs were run or checked between approximately midnight
and 7:27 a.m. on September 14.
5
Gunn and OGA assert that the 18-unit figure instead should be 20.1 units based on
Brewer’s testimony that three liters of blood equals nine units. That is, if three liters equals
nine units, then one liter equals three units. Therefore, 6.7 liters multiplied by 3 units equals
20.1 units.
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 Shannon’s hemoglobin level was 9.5 as reflected in labs
collected at approximately 11:00 a.m. during her prenatal visit
with Gunn on September 13. As reflected in the 7:27 a.m. lab
results on September 14, Shannon’s hemoglobin level was
down to 5.5. Every one point that the hemoglobin goes down is
approximately equal to one net unit of blood. Based on
Brewer’s calculations, accounting for the two units of blood
received at approximately 4:00 a.m. and 5:00 a.m. on
September 14, this indicated that Shannon had lost
approximately four units of blood up “to the time of delivery”
on September 14, or a blood volume loss of about 25%.6
 The hemoglobin result of 5.5 should have put Gunn into
“panic” mode regarding Shannon’s bleeding. This result
reflected internal bleeding up until the time of delivery because
up to that point “they had not seen bleeding that they could
quantitate.”
 To a physician applying ordinary care to a patient with DIC,
this would indicate there was “serious trouble” because
managing DIC requires not getting “behind” on blood loss.
 As reflected in the 7:27 a.m. lab results on September 14,
Shannon’s prothrombin time had decreased somewhat from 21
to 17-plus seconds, as a result of the FFP given, but remained at
a “scary” level where normal ranges from 12 to 13 seconds.7
 Gunn did not have a written, coherent plan for how to care for
Shannon.
 It probably does not meet the standard of care for a physician
treating a patient with DIC to wait until after 9:00 a.m., or at
least an hour, to order additional blood products after lab results
indicated a 25% blood volume loss.
6
Gunn and OGA dispute this blood volume loss percentage calculation, arguing that 4
units divided by 18 units equals 22%, and using 20.1 units instead, 4 units divided by 20.1 units
equals 20%.
7
Gunn and OGA assert that the 7:27 a.m. prothrombin result was reported by an offsite
lab and would not have been available on September 14. If, however, the only prothrombin
result available from the hospital lab at 7:27 a.m. on September 14 was 21.5 seconds, then this
figure exceeded the 20 seconds in the 12:20 a.m. prothrombin result on September 14 and
potentially signaled a greater need for additional FFP.
13
 The standard of care for a physician treating a patient such as
Shannon is to remain by the bedside to monitor infusion of
blood products.
 The last unit of FFP Shannon received, which was ordered by
Jacobs, finished infusing at 3:51 a.m. on September 14.
 Gunn was negligent in failing to order and administer any FFP
to Shannon, and there is “no defense” of that failure.
 Shannon continued to lose blood volume because she did not
receive any more FFP.
 Shannon needed to have at least three IVs: one for fluids, one
for FFP, and one for blood and platelets. “[O]therwise, you
can’t get these products in fast enough.”
 From about the time of delivery until she was moved to the
ICU, the labor and delivery nursing notes indicate that Shannon
suffered blood loss of about 1.4 liters. Based on Brewer’s
calculations, accounting for blood received, at about 11:00 a.m.,
Shannon’s blood volume loss was approximately 22%.
 It was foreseeable that when DIC is not controlled and a
patient’s uterus is unable to contract, there will be additional
bleeding.
 Not receiving FFP had “a lot to do with the uterine atony.”
 Shannon’s urine output decreased while she was still in labor
and delivery, a “warning sign” that her kidneys were not being
profused with enough blood flow. Gunn ordered Lasix, a
diuretic designed to combat fluid overload, but which is
contraindicated for bleeding.
 The ICU nursing notes indicate that at 12:00 p.m., Shannon’s
fundus was boggy and the nurses massaged it resulting in a
large amount of external bleeding and clots.
 The ICU nursing notes indicate that at 12:45 p.m., Shannon’s
fundus was again boggy and the nurses expelled a large amount
of blood.
 At about noon, Shannon’s heart rate was in the 200s.
 When a patient in Shannon’s situation has a heart rate that is
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“quite tachycardic,” in the 200s, this tells a reasonably prudent
physician the heart is attempting to compensate for a lack of
blood.
 At about 12:45 p.m., Shannon’s oxygen saturation rate was
down to 72%, and she was agitated. An oxygen saturation level
of 72% is a “crisis.” Agitation is a “cardinal sign” that a patient
is “going into cardiovascular collapse.”
 When a patient in Shannon’s situation has an oxygen saturation
of 72%, a reasonably prudent physician would already be at her
bedside or return immediately, not 40 minutes later.
 If a patient’s oxygen level is low, she will increase her
respiratory rate to take in more oxygen. In the ICU, Shannon’s
respiratory rate was elevated above the upper range of normal
(over 20).
 After she was moved to ICU, by approximately 1:00 p.m.,
Shannon suffered an additional 1.6 liters of external blood loss.
Based on Brewer’s calculations, this represented an additional
11% to 22% blood volume loss, for a total blood volume
percentage loss of 33% to 44%.
 As reflected in the 1:16 p.m. lab results on September 14,
Shannon’s hemoglobin level was 7.5. Even though this
reflected an increase in her hemoglobin, Shannon was
“continuing to bleed.”
 Also, as reflected in the 1:16 p.m. lab results on September 14,
Shannon’s creatinine level had increased to 1.9 from 1.1 as
reflected in the 7:27 a.m. lab results, indicating that her kidneys
were not receiving adequate blood flow. “[W]hen we see a
change in creatinine this quickly, that is renal failure.”
 The body will shunt blood flow away from the kidneys in order
to spare damage to the heart and the brain.
 At 1:30 p.m., Shannon’s respiratory rate was 30.
 If Shannon had been adequately resuscitated, meaning
“corrected to normal,” with blood products by approximately
1:00 p.m., then she otherwise would have woken up “intact”
from her hysterectomy.
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 In other words, the “d[i]e was cast with reasonable certainty” at
approximately 1:00 p.m.
 It was reasonably foreseeable that when a person suffers
significant blood volume loss of about 33% to 44%, “something
catastrophic,” such as going into v-fib, was going to happen
when she was brought to the operating room.
 Shannon’s v-fib was likely “inevitable” even without sedation.
 When the heart goes into v-fib, it stops pumping properly,
resulting in lack of blood flow and oxygen to the brain.
 Shannon was in v-fib for approximately 11 minutes, and CPR
was performed for 20 minutes.
 The pH level of Shannon’s blood gases and her EEG indicated
that she had suffered global brain damage from oxygen
deprivation.
 Shannon’s lack of blood and lack of circulating blood volume
caused her brain damage because she did not have adequate
blood flow and oxygen delivery to her brain.
 If Shannon’s DIC had been properly treated, her brain damage
would not have occurred.
In contrast to Brewer, defense expert Dr. James Aubuchon, a medical doctor
board certified in anatomic and clinical pathology, and blood banking and
transfusion medicine, provided the following opinions:
 Shannon’s DIC did not cause excessive bleeding.
 There was no need to perform real-time blood loss calculations.
 Brewer’s blood-loss calculations “didn’t make sense” because
they were based on hemoglobin concentrations.
 It would not be necessary to have two IV lines going to provide
adequate blood products.
 It would not be appropriate to frequently check a patient’s lab
results when infusing blood products.
 Providing Lasix would not directly impact circulating blood
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volume.
 Prothrombin time is a poor predictor of a patient’s likelihood of
bleeding.
 Shannon’s tachycardia did not necessarily result from a lack of
low blood volume.
 Shannon’s coding in the operating room was not caused by
blood loss.
 It was not foreseeable that Shannon would arrest from blood
loss.
 The absence of additional FFP infusions between 4:00 a.m. and
1:16 p.m. on September 14 constituted appropriate care.
 Gunn provided appropriate blood transfusion and support, and
properly resuscitated Shannon, such that she was
hemodynamically stable when her uterine atony occurred.
b. Causation
McCoy’s causation theory is that Gunn failed to adequately treat Shannon’s
DIC by failing to order FFP to replace Shannon’s clotting factors and slow her
bleeding, and by failing to infuse enough units of blood. As Shannon continued to
bleed, her body attempted various compensation mechanisms in an effort to
maintain enough oxygen flow to avoid cardiovascular collapse and damage to her
critical organs.8 However, Shannon continued to lose blood volume. As her blood
volume loss approached the critical danger zone of approximately 40%, Shannon’s
body could no longer compensate, resulting in her cardiac arrest, lack of oxygen
flow to her brain, and her permanent brain damage.9
8
Aubuchon acknowledged that a 25% blood volume loss in a patient with DIC requires
attention. In addition, defense expert Dr. James Alexander, a medical doctor board certified in
obstetrics and gynecology, with a subspecialty of maternal-fetal medicine, opined that Shannon
needed FFP in the morning after Gunn took over her care.
9
Aubuchon stated that “40 percent blood loss would have severe consequences for the
patient” and that a 33% to 44% blood volume loss is “approaching the point of cardiovascular
17
Gunn and OGA focus their attack on two aspects of Brewer’s testimony in
arguing that a fatal analytical gap exists in Brewer’s theory of causation linking (1)
Gunn’s asserted failure to address Shannon’s bleeding properly between
approximately 4:00 a.m. and 1:00 p.m.; and (2) Shannon’s cardiac arrest at just
after 2:00 p.m. and her subsequent brain damage.
First, they argue that Brewer made an “unsupported guess” when she opined
that Shannon lost 1.6 liters of blood—which equates to 4.8 units—between 11:00
a.m. and 1:00 p.m. in the ICU. Brewer estimated this figure from her review of
the hospital medical records, particularly the ICU nursing notes; these notes
indicate that a “large” but unquantified amount of blood was expelled twice
between 11:00 a.m. and 1:00 p.m. when nurses massaged Shannon’s uterus.
Second, according to Gunn and OGA, the 1:16 p.m. lab results conclusively
disprove Brewer’s estimate that Shannon had lost approximately 33% to 44% of
her blood volume by about 1:00 p.m.10 Brewer testified that each point of
hemoglobin represents a unit of blood. Therefore, Gunn and OGA argue that the
increase in hemoglobin value from 5.5 at 7:27 a.m. to 7.5 at 1:16 p.m. meant
Shannon “had 2 more units of blood at 1:16 p.m. than she had at 7:27 a.m.” Gunn
and OGA rely on these figures to argue that Shannon had lost 14% of her blood
volume by 1:16 p.m. rather than the higher volume estimated by Brewer.
It is undisputed on this record that a patient faces an increasing likelihood of
collapse.”
10
Although Gunn acknowledged that part of her job as a physician managing a DIC
patient was to perform calculations to monitor blood volume loss, she testified there were no
calculations in the medical chart and could not give any opinions as to calculations of Shannon’s
blood volume loss.
Aubuchon acknowledged that he sometimes performs after-the-fact blood volume loss
calculations to determine whether a patient was still bleeding or was destroying transfused red
blood cells, but also did not perform any blood volume loss calculations in this case.
18
cardiac arrest as blood volume loss approaches 40%. Therefore, the asserted fatal
analytical gap is not a valid basis for attacking causation if the jury reasonably
could have concluded from unchallenged evidence that Shannon’s blood volume
loss between approximately 4:00 a.m. when Gunn took over Shannon’s care and
1:00 p.m. approached 40%.
Blood loss before 6:20 a.m. delivery. Gunn and OGA do not dispute that
Shannon experienced DIC while she was under Gunn’s care and that Shannon
experienced internal bleeding prior to delivery. Brewer explained that when a DIC
patient like Shannon has not exhibited external bleeding that can be quantified,
laboratory results are useful to determine whether the patient is experiencing
internal blood loss. Gunn and OGA also do not challenge: (1) Brewer’s
methodology equating a one-point drop in hemoglobin to one net unit of blood
loss; (2) lab results showing a drop in hemoglobin from 9.5 as reflected in the lab
results from Shannon’s September 13 prenatal appointment to 5.5 as reflected in
the 7:27 a.m. lab results on September 14; or (3) aside from noting it should be 20
percent instead of 25 percent,11 Brewer’s initial percentage blood volume loss
calculation based on these hemoglobin figures reflecting Shannon’s internal
bleeding up “to the time of delivery.”
Applying this methodology, Shannon’s net blood volume loss was four units
between approximately 11:00 a.m. on September 13 when Shannon’s blood was
drawn during her prenatal visit and the 6:20 a.m. delivery on September 14;
Shannon experienced internal bleeding totaling about six units of blood and two
units of blood were replaced during this interval. Based on this four-unit figure,
and using Gunn’s and OGA’s higher 20.1-unit estimate for Shannon’s initial blood
volume, Shannon’s percentage of blood volume loss stood at approximately 20%
11
See n.6.
19
when delivery began.
Blood loss during delivery and before 11:00 a.m. Even a normal delivery
results in external blood loss.12 Here, because Shannon was suffering from DIC,
Kirshon recommended watching for “major postpartum hemorrhage.” According
to undisputed figures in the labor and delivery medical records, Shannon
experienced external bleeding of approximately 1.4 liters of blood from the time of
delivery until 11:00 a.m. Gunn and OGA do not challenge that one liter of blood
equals three units. Therefore, the jury reasonably could have concluded that
Shannon lost an additional 4.2 units of blood during delivery and before 11:00 a.m.
Blood loss after 11:00 a.m. Gunn and OGA do not dispute that Shannon
experienced bleeding after she was moved to the ICU at approximately 11:00 a.m.
They dispute the amount and contend that Brewer’s 1.6-liter/4.8-unit figure for the
11:00 a.m.-to-1:00 p.m. interval is speculative.
On their face, the medical records do not list a specific figure for the
approximate blood loss experienced by Shannon in the ICU between 11:00 a.m.
and 1:00 p.m. Gunn acknowledged, and Gunn and OGA do not otherwise
challenge, that Shannon experienced two instances of “large” blood loss when the
ICU nurses massaged her uterus at 12:00 p.m. and 12:45 p.m. The labor and
delivery nursing notes reflect that a prior fundal massage at approximately 9:00
a.m. yielded “moderate” bleeding estimated at 1.5 units.13 Gunn and OGA do not
challenge this figure.
12
Brewer testified that a normal amount of blood loss from a vaginal delivery was 700
cc. 1000 cc equals one liter; one liter equals three units of blood. 700 cc or 0.7 liters equals 2.1
units. Gunn’s post-operative report estimated Shannon’s delivery blood loss at 700 to 1000 cc.
700 to 1000 cc or 0.7 to 1 liter equals 2.1 to 3 units.
13
The estimated blood loss figure at 9:00 a.m. in Shannon’s output record was 500 cc,
which the nursing notes described as “mod. bleeding.” 500 cc or 0.5 liters equals 1.5 units.
20
We assume without deciding that Brewer’s 1.6-liter/4.8-unit estimate of
blood loss in the ICU between 11:00 a.m. and 1:00 p.m. is speculative. Even with
this assumption, the jury reasonably could have relied on the quantified
“moderate” blood loss figure of 1.5 units from an earlier bleeding episode
following uterine massage to conclude that Shannon lost at least three units when
she experienced two episodes of “large” blood loss from uterine massage between
11:00 a.m. and 1:00 p.m.
There is no dispute that Shannon continued to expel blood after 1:00 p.m.
According to Gunn’s discharge summary, Gunn approximated active bleeding at
Shannon’s perineum to be 800 to 1000 cc at 1:28 p.m., when Gunn returned to
Shannon’s bedside. 800 to 1000 cc or 0.8 to 1 liters equals 2.4 to 3 units.
Total blood loss by 1:00 p.m. In sum, this record allowed the jury
reasonably to conclude that Shannon lost six units of blood between approximately
11:00 a.m. on September 13 and 6:20 a.m. on September 14 due to internal
bleeding, and that she lost another 4.2 units of blood between 6:20 a.m. and 11:00
a.m. due to external bleeding. Even if Brewer’s estimate of a 4.8-unit blood loss
between 11:00 a.m. and 1:00 p.m. is given no weight, as discussed above, the jury
could have relied on other unchallenged evidence in the record reasonably to
conclude that Shannon’s external blood loss in the ICU between 11:00 a.m. and
1:00 p.m. totaled at least three units. Adding these figures together would allow a
reasonable jury to conclude that Shannon’s total blood loss by 1:00 p.m. was at
least 13.2 units.
Gunn and OGA do not dispute that Shannon received six units of blood via
transfusion between approximately 4:00 a.m. and 1:00 p.m.
Utilizing the initial blood volume figure of 20.1 units cited by Gunn and
OGA, the jury reasonably could have concluded that Shannon’s blood volume loss
21
reached approximately 36% by 1:00 p.m. in reliance on these figures:
 20.1 units of blood present in Shannon’s body at 11:00 a.m. on
September 13 minus 13.2 units of blood lost plus 6 units of
blood replaced equals 12.9 units of blood present at 1:00 p.m.
on September 14.
 20.1 units of blood present in Shannon’s body at 11:00 a.m. on
September 13 minus 12.9 units of blood present at 1:00 p.m. on
September 14 equals a net blood loss of 7.2 units during that
interval.
 A net blood loss of 7.2 units as of 1:00 p.m. on September 14
divided by 20.1 units of blood present at 11:00 a.m. on
September 13 equals 36% of blood volume loss during that
interval.
This percentage falls squarely within Brewer’s estimated blood volume loss range
of 33% to 44%, and approaches the critical danger zone where it is undisputed on
this record that cardiac arrest is a reasonable medical probability. The jury also
could have considered evidence of additional blood loss after 1:00 p.m.
Contrary to Gunn’s and OGA’s position, Shannon’s hemoglobin result of
7.5 as reflected in her 1:16 p.m. lab results does not conclusively establish that
Shannon’s blood volume percentage was increasing or that her blood volume loss
was 14% at 1:00 p.m. Viewed in isolation, a lab result indicating that Shannon’s
hemoglobin had gone up by two points could indicate an increase in blood volume.
But this evidence cannot be viewed in isolation. In assessing proximate cause, the
jury was entitled to credit Brewer’s testimony that it is not “appropriate” for
someone managing a DIC case to consider just one lab result such as hemoglobin14
and ignore all the other markers, including the presence of quantifiable external
bleeding.
14
Aubuchon testified that one “really can’t calculate or project what the blood loss is just
by looking at hemoglobin.”
22
The legal-sufficiency standard of review requires this court to consider all
evidence and inferences in the light most favorable to the jury’s findings, and to
disregard all contrary evidence and inferences if a reasonable juror could do so
when assessing proximate cause. Applying this standard in light of the evidence
discussed above, this jury reasonably could have concluded that Shannon’s blood
volume loss crossed the threshold of cardiovascular crisis by 1:00 p.m. and
thereafter. In addition, the jury reasonably could have relied upon evidence that
despite the elevation in hemoglobin level at 1:16 p.m. Shannon was continuing to
bleed; her creatinine levels had “almost doubled” from 1.1 at 7:27 a.m. to 1.9 at
1:16 p.m., which indicated reduced blood flow to the point of renal shutdown;15
she was “quite tachycardic”; her oxygen saturation had dropped to a “crisis” level;
and she was exhibiting agitation signaling imminent cardiovascular collapse.
The remainder of Gunn’s and OGA’s legal-sufficiency issue attacks
Brewer’s opinions as being conclusory. Gunn and OGA rely on Jelinek and Blan
v. Ali, 7 S.W.3d 741 (Tex. App.—Houston [14th Dist.] 1999, no pet.), in making
this argument.
In Jelinek, the Supreme Court of Texas concluded that an expert must
explain to a reasonable degree of medical probability “how and why” the
negligence caused the injury. 328 S.W.3d at 536–38 (reversing judgment based on
jury verdict because expert causation testimony was conclusory; expert testified
that patient’s pain was probably caused by lack of antibiotics but acknowledged
pain could have been caused by other factors antibiotics would not have treated).
15
According to Brewer:
Q. So if we have over here where a 25-percent blood loss results in a creatinine
of 1.1, what would you expect the creatinine to do over here at 1:00 o’clock when
we have 33 or 44 percent of blood loss, would it have gotten worse?
A. That’s what it did, absolutely.
23
In Blan, this court concluded that an expert must explain the basis of his statement
to link his conclusions to the facts. 7 S.W.3d at 748 (affirming summary judgment
where conclusory expert affidavit stated that doctors’ negligence allowed patient to
deteriorate and that prompt recognition of patient’s condition would have led to
appropriate treatment and, more than likely, an improved outcome).
This reliance is misplaced because the record here distinguishes this case
from the circumstances addressed in Jelinek and Bran. Brewer explained the
importance of replacing Shannon’s clotting factors particularly through infusions
of FFP. Brewer also explained the importance of adequately replacing Shannon’s
blood volume loss. She faulted Gunn for failing to take these steps. Brewer
sufficiently detailed “how and why” these two primary failures of DIC
management in Shannon’s treatment led to her percentage of blood volume loss
crossing into a critical danger zone undisputedly linked to cardiac arrest. Brewer
further opined that cardiac arrest led to Shannon’s brain damage due to lack of
oxygen. Brewer’s testimony was grounded on Shannon’s medical records and lab
results. See Jelinek, 328 S.W.3d at 536–37. Moreover, unlike the expert in
Jelinek, Brewer did not undermine her own conclusions because she expressed “no
doubt” that Gunn’s failure to properly treat Shannon’s DIC caused her brain
damage. Cf. id. at 536–37 (expert conceded patient’s symptoms were consistent
with infections not treatable with the allegedly negligently omitted antibiotics).
Brewer explained how and why Shannon’s clotting factors were not replaced and
her blood volume continued to decrease to a crisis level as a result of Gunn’s
negligent actions. Brewer also explained how and why adequate replacement of
Shannon’s lost blood volume would have spared her brain functioning. Cf. Bran, 7
S.W.3d at 748.
Gunn and OGA further argue that Brewer’s testimony amounts to no
24
evidence because she did not rule out other causes of Shannon’s brain injuries.
The Texas Supreme Court has noted that a medical causation expert need not
disprove or discredit every other possible cause. Transcon. Ins. Co. v. Crump, 330
S.W.3d 211, 218 (Tex. 2010); see Bradley v. Rogers, 879 S.W.2d 947, 954 (Tex.
App.—Houston [14th Dist.] 1994, writ denied) (plaintiff need not establish
causation in terms of medical certainty nor exclude every other reasonable
hypothesis). If that were the case, then few expert opinions would survive scrutiny
for purposes of legal sufficiency. See Crump, 330 S.W.3d at 218. However, when
an expert fails to explain or adequately disprove alternative theories of causation,
this renders her own theory speculative and conclusory. Wal-Mart Stores, Inc. v.
Merrell, 313 S.W.3d 837, 840 (Tex. 2010) (per curiam).
Brewer recognized that uterine atony can occur in the absence of DIC, but
she explained Shannon’s uterine atony was aggravated by her hemodynamic
instability verging on crisis.16 Nor did Brewer believe Shannon’s uterine atony
caused her brain injuries. Brewer also explained how, based on her review,
Shannon’s EEG was consistent with global anoxic brain damage because it lacked
the focal features that would be consistent with a stroke or brain hemorrhage. In
addition, Brewer explained why she believed any microthrombi theory involving
the formation of small clots in Shannon’s brain was highly unlikely.17 Brewer
similarly explained why she would rule out pulmonary18 or amniotic fluid19
16
Alexander did not believe that DIC caused Shannon’s uterine atony. Aubuchon also
did not believe any hematologic situation caused Shannon’s uterine atony. However, Alexander
and Aubuchon both acknowledged that a patient who is hemodynamically unstable can develop
uterine atony.
17
Brewer based this on Shannon’s lack of clotting and her review of Shannon’s EEG.
Brewer discounted the microthrombi study relied on by defense expert neurologist Dr. Martin
Steiner because it involved a patient population dissimilar to Shannon. Brewer also noted how
none of Shannon’s 17 neurological consults attributed her brain injuries to microthrombi.
18
Brewer explained that pulmonary embolus typically occurs when a patient is
25
embolus, as well as sepsis.20 Finally, Gunn and OGA point to Collins’s testimony
that he diagnosed Shannon’s rapid heartbeat as a result of an atrial conduction
disorder, not low blood volume, and he did not believe Shannon was in
hemorrhagic shock prior to 1:00 p.m. But opining that Shannon’s PAT was caused
by a conduction disorder is not the same as opining that Shannon’s brain injuries
were caused by PAT21 or any conduction disorder.22 Even assuming this were an
alternative causation theory, Brewer explained that Shannon’s PAT could not be
considered “out of context”; Collins came in on an emergency basis without the
background on Shannon; and Shannon’s having an arrhythmia unrelated to her
blood loss was “unlikely . . . because the underlying issue is her blood loss.”
Like many medical malpractice cases, this case was in many respects a
“battle of the experts.” See Morrell, 184 S.W.3d at 282. It is the factfinder’s—not
this court’s—province to decide which expert witness to credit. See id. The jury
heard conflicting opinions; it reasonably could have believed Brewer in light of
unchallenged evidence discussed above. See id. In sum, considering only the
evidence and reasonable inferences favorable to the jury’s proximate cause finding,
and disregarding all evidence and inferences to the contrary because a reasonable
juror could do so, we conclude that the evidence is legally sufficient to support a
finding of proximate cause.23 Therefore, we overrule Gunn’s second issue and
hypercoagulable (clotting too much). Also, Shannon’s high oxygen content 30 minutes after the
cardiac event was not indicative of pulmonary embolus.
19
Brewer explained that amniotic fluid embolus usually occurs within 30 minutes of
delivery, not hours later.
20
Brewer discounted sepsis because Shannon’s cultures “never grew anything.”
21
Collins also acknowledged PAT can be caused by many different things.
22
We note a subpart of Gunn and OGA’s legal-insufficiency argument is that Collins
admitted to not being qualified to opine as to what caused Shannon’s brain injuries.
23
Because the jury properly could have determined proximate cause based on Brewer’s
testimony, we need not reach Gunn’s and OGA’s subissue that Collins’s causation opinions
26
OGA’s first issue.
C. McCoy’s no-evidence motion for summary judgment
In their first and second issues, respectively, Gunn and OGA argue that the
trial court erred in granting no-evidence summary judgment as to their affirmative
defense of comparative responsibility directed towards Woman’s based on the
conduct of its nursing staff.
To obtain a jury submission on comparative responsibility, Gunn and OGA
needed to proffer evidence addressing: (1) a duty requiring the treating labor and
delivery nurses to conform to a certain standard of care; (2) the applicable standard
of care and its breach; (3) resulting injury; and (4) a reasonably close causal
connection between the nurses’ breach of the standard of care and the injury. See
Blan, 7 S.W.3d at 744. Gunn and OGA contend there is an evidentiary basis for a
comparative responsibility submission to a factfinder against Woman’s because
Gunn issued a verbal order for FFP to be administered to Shannon that was not
documented or implemented by the nurses.
A no-evidence motion for summary judgment is essentially a motion for a
pretrial directed verdict. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The same no-evidence legal-sufficiency standard of
review applies. King Ranch, 118 S.W.3d at 751. After an adequate time for
discovery, a party without the burden of proof may, without presenting evidence,
seek summary judgment on the ground that there is no evidence to support one or
more essential elements of the nonmovant’s claim or defense. Tex. R. Civ. P.
amounted to no evidence of causation. See Tex. R. App. P. 47.1. And even if the trial court
erred by admitting Collins’s allegedly “strikingly similar” testimony during rebuttal, any error in
admitting testimony cumulative of Brewer’s properly admitted testimony was harmless. See id.
44.1(a)(1); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Haryanto v.
Saeed, 860 S.W.2d 913, 924 (Tex. App.—Houston [14th Dist.] 1993, writ denied).
27
166a(i). The nonmovant is required to present evidence raising a genuine issue of
material fact supporting each element contested in the motion. Id.; Timpte Indus.,
286 S.W.3d at 310.
We review the trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In most medical
malpractice cases, “expert testimony is necessary” to establish or preclude
summary judgment. Blan, 7 S.W.3d at 744; see Am. Transitional Care Centers of
Tex., Inc. v. Palacios, 46 S.W.3d 873, 880 (Tex. 2001). We review the evidence in
the light most favorable to the nonmovant, disregarding all contrary evidence and
inferences. Timpte, 286 S.W.3d at 310. Where, as here, a trial court’s order
granting summary judgment does not specify the ground or grounds relied on for
its ruling, we affirm the summary judgment if any theory advanced is meritorious.
Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
A party may not avoid a no-evidence summary judgment by presenting
speculative or conclusory opinions not adequately supported by facts. See
Hodgkins v. Bryan, 99 S.W.3d 669, 674–75 (Tex. App.—Houston [14th Dist.]
2003, no pet.) (affirming granting of no-evidence summary judgment as to
causation where expert’s affidavit was conclusory—it did not include facts or
studies to support that decedent would have survived her brain cancer with prompt
treatment). An expert opinion is conclusory if it is essentially a “conclusion
without any explanation.” Arkoma Basin Exploration, 249 S.W.3d at 389 & n.32.
Again, evidence does not exceed a scintilla if it is so weak as to do no more than to
create a mere surmise or suspicion that the fact exists. Ridgway, 135 S.W.3d at
601; Hodgkins, 99 S.W.3d at 673.
Here, McCoy filed a motion for no-evidence summary judgment as to the
28
affirmative defense of comparative responsibility.24 With regard to negligence,
McCoy argued no expert testimony established that any of the treating labor and
delivery nurses failed to exercise ordinary care with respect to the care and
treatment of Shannon on September 14, 2004; no evidence demonstrated that
anything the treating nurses allegedly did or did not do in the care and treatment of
Shannon proximately caused her brain injury; and no evidence demonstrated that
any conduct by the treating nurses was a substantial factor in bringing about
Shannon’s brain injury. As the parties seeking a jury submission on the asserted
negligence of the treating labor and delivery nurses, Gunn and OGA had the
burden to introduce sufficient evidence to survive summary judgment. See Tex. R.
Civ. P. 166a(i); accord Tex. Civ. Prac. & Rem. Code Ann. § 33.003(b) (West
2013) (only permitting jury submission on percentage responsibility with sufficient
evidence in support).
Gunn and OGA responded, arguing that excerpts from Aubuchon’s and
Brewer’s depositions provided more than a scintilla of evidence to apportion fault
against Woman’s, by and through the actions of its nurses, in not properly
documenting and implementing Gunn’s alleged verbal order to administer more
FFP to Shannon. McCoy replied that there was no evidence Aubuchon satisfied
the qualification requirements under chapter 74 to be able to testify about the
appropriate nursing standard of care or how the treating nurses allegedly violated
the standard of care. See Tex. Civ. Prac. & Rem. Code Ann. § 74.402(b) (West
2013); cf. Hood v. Phillips, 554 S.W.2d 160, 165–66 (Tex. 1977) (plaintiff must
establish that medical professional defendant has undertaken mode or form of
24
This motion also addressed the alleged comparative negligence of Andre McCoy, his
family members, and Collins. However, in their response, Gunn and OGA indicated they were
not seeking to apportion fault against McCoy, his family members, and Collins, but rather only
against the treating labor and delivery nurses at Woman’s.
29
treatment which reasonable and prudent member of medical profession would not
have undertaken under same or similar circumstances, usually by expert
testimony).
1. Negligence
Here, Gunn and OGA needed to put forth more than a scintilla of evidence
that the treating labor and delivery nurses committed a breach of the applicable
standard of care which was a proximate cause of the injury. The record does not
contain evidence of any documented physician’s order, whether issued in writing
or verbally, by Gunn or any other physician treating Shannon, to provide Shannon
with any additional FFP beyond the two units she received between approximately
3:00 a.m. and 4:00 a.m. on September 14 while under the care of Jacobs before
Gunn arrived at the hospital. Therefore, to raise a fact issue on the theory of
comparative responsibility advocated on appeal by Gunn and OGA, there would
need to be evidence that the treating labor and delivery nurses failed to document
and implement a verbal order issued after 4:00 a.m. by Gunn or another physician
treating Shannon that she receive more FFP. In the summary judgment
proceedings, Gunn and OGA did not provide testimony or affidavits from Gunn,
another treating physician, or any treating nurse that Gunn or another treating
physician issued a verbal order for FFP to a treating nurse during the interval
between 4:00 a.m. and 1:00 p.m. on September 14.
Gunn and OGA point to testimony from Aubuchon and Brewer to support a
comparative responsibility submission based on the nurses’ conduct. With regard
to the nursing standard of care, Aubuchon stated that he would “certainly not be
offering any opinions regarding [anyone on the clinical team’s] clinical care”
except with regard to his “area of transfusion medicine expertise, that is, whether
or not the blood component volumes administered were adequate.” Nor do the
30
deposition excerpts relied on by Gunn and OGA demonstrate that Aubuchon (a
pathologist and blood banking and transfusion medicine physician) was qualified
to address the standard of care applicable to the treating labor and delivery nurses.
See Baylor Med. Ctr. at Waxahachie, Baylor Health Care Sys. v. Wallace, 278
S.W.3d 552, 558 (Tex. App.—Dallas 2009, no pet.) (“Section 74.402(b) makes it
clear that different standards of care apply to physicians and health care
providers.”).
Even if he were qualified to opine on the nursing standard of care, and any
attendant breach, Aubuchon’s stated “disappointment” in the nurses’ “deficiencies”
in documenting blood components administered and verbal orders by physicians
was not supported by sufficient facts or explanations.25 Further, Aubuchon’s belief
that “at least two units of plasma that were ordered early in the morning of
September 14th were not ultimately transfused in the timeframe that was expected
by the ordering physician” amounts to mere surmise or suspicion because it is
speculative and conclusory. Aubuchon did not remember, did not know, and
declined to guess at the identity of any physician who supposedly ordered such
plasma. He could not recall what time the plasma allegedly was ordered. He
acknowledged paying little attention to “who ordered what blood component
when” and lacked the details to assign responsibility for “who didn’t transmit an
order or didn’t hang the units in question.” When pressed to provide “any
evidence that any fresh frozen plasma that was ordered by any physician was not
administered by the nurses,” Aubuchon could not do so because he did not “have
25
See Chopra v. Hawryluk, 892 S.W.2d 229, 233 (Tex. App.—El Paso 1995, writ denied)
(summary judgment evidence only stating radiologist should examine x-ray and report results in
written report but not providing steps necessary to properly read particular x-ray at issue or
stating what adequate report should contain was insufficient); Armbruster v. Mem’l Sw. Hosp.,
857 S.W.2d 938, 942–43 (Tex. App.—Houston [1st Dist.] 1993, no writ) (summary judgment
evidence merely concluding lack of negligence without offering facts or explanations was
insufficient).
31
any notes” on the medical records or “any stickies on the depositions.”
With regard to Brewer, we assume for argument’s sake that she was
sufficiently familiar with the standard of care for labor and delivery nurses treating
a patient such as Shannon to opine on this point.26 Even with this assumption, the
testimony cited in Gunn’s and OGA’s summary judgment response does not raise a
fact issue.
In that testimony, Brewer stated that “the person who ordered it, and the
person who didn’t carry out the order are all responsible.” This testimony was
provided “[i]n general, not in this particular case.” This “general” testimony—
which does not indicate what “it” was that was ordered aside from “blood or blood
products”—has not been shown to have any applicability in this case because
Brewer repeatedly said she saw no documentation in Shannon’s medical records
indicating that a doctor ordered any blood or blood products for a DIC patient
where a treating nurse failed to carry out such order.27 Brewer agreed that “it’s a
problem for the nurse” and “it’s a problem for the physician” if four units of FFP
were ordered but were not administered by the nurses; Brewer does not provide
any evidence that Gunn or another physician treating Shannon issued a verbal
26
We reject the effort of Gunn and OGA to rely on Brewer’s original healthcare liability
expert report attached to McCoy’s original petition, which cited to the Standards of Nursing
Practice. Different, more formal requirements apply to evidence offered in connection with
summary judgment or at trial. See Palacios, 46 S.W.3d at 879. Chapter 74 does not permit the
use of healthcare liability expert reports as evidence or during trial or other proceedings. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(k) (West 2013). Furthermore, nothing within the
deposition excerpts relied on by Gunn and OGA in response to McCoy’s no-evidence motion for
summary judgment addresses Brewer’s familiarity with the treating nurses’ standard of care.
27
Although Gunn and OGA in their response stated that they were relying on “the
medical records in this case in support of [their] affirmative defense,” they did not provide the
trial court with any citations to or descriptions of those records. At the summary judgment
hearing, Gunn’s counsel indicated she was withdrawing the medical records as summary
judgment evidence. While Gunn and OGA cite to portions of the medical records on appeal,
specifically, Gunn’s progress notes, they cite to a trial exhibit that was not part of the summary
judgment record.
32
order for additional FFP to be administered between 4:00 a.m. and 1:00 p.m. Nor
does Brewer provide evidence that a treating nurse failed to document and
implement such a verbal order for additional FFP to be administered during this
interval. Brewer later stated that upon re-review of the medical records, she
concluded that Gunn never ordered that Shannon receive four units of FFP.
Brewer therefore corrected her deposition testimony: “I think it’s a problem for Dr.
Gunn, not the nurse.” Nor did Brewer or Aubuchon testify that the nurses’
standard of care included anything beyond following the doctors’ orders regarding
administering blood products.28
Based on our review of the summary judgment record, even taking all the
evidence and making inferences in their favor, Gunn and OGA did not meet their
burden to raise a fact issue regarding the nurses’ negligence. Therefore, the trial
court did not err by granting no-evidence summary judgment in favor of McCoy as
to the affirmative defense of comparative responsibility.
28
On appeal, with regard to negligence, Gunn and OGA also point to excerpts from
Alexander’s deposition. In their response below, they did not provide the trial court with any
citations to or descriptions of Alexander’s testimony. See Moon Sun Kang v. Derrick, No. 14-
13-00086-CV, 2014 WL 2048424, at *7 (Tex. App.—Houston [14th Dist.] May 15, 2014, pet.
denied) (mem. op.) (“In determining whether the nonmovant raised more than a scintilla of
evidence in support of his claims and affirmative defenses, we are limited to the summary
judgment proof produced in the response.” (internal quotation marks omitted)).
In any event, Gunn and OGA cannot rely on Alexander’s testimony to raise a fact issue
on whether Gunn ordered the additional FFP noted in her progress notes. Alexander’s testimony
on this point amounts to mere surmise or suspicion because it is speculative and conclusory.
Alexander discussed Gunn’s “plan” in her progress notes to give “FFP x 4” to Shannon, but
stated that a physician’s plan is not an order. From the time Gunn took over Shannon’s care at
4:00 a.m. until her cardiac arrest at 2:00 p.m., Alexander testified he “did not see a written or
verbal order to give fresh frozen plasma.” Alexander pointed to two blood bank unit issue cards
reflecting two units of FFP issued at 2:21 p.m. on the afternoon of September 14—after Shannon
had already suffered cardiac arrest—as “evidence that the blood bank received an order and
prepared the plasma.” However, Alexander did not know who gave the orders for the
preparation and issuance of those two units of fresh frozen plasma or when such orders were
given.
33
2. Causation
Even if Gunn and OGA raised a fact issue as to the treating labor and
delivery nurses’ negligence, the trial court properly could have granted McCoy’s
no-evidence summary judgment as to proximate cause. Gunn and OGA attempt to
rely on McCoy’s live petition. However, setting aside whether we appropriately
could consider statements in McCoy’s pleading as judicial admissions in this
healthcare liability case, assertions such as “each of the [alleged acts of negligence]
was a proximate and producing cause of Plaintiffs’ injuries and damages” are
conclusory statements not sufficient to support or defeat summary judgment. See
Hodgkins, 99 S.W.3d at 674–75; Blan, 7 S.W.3d at 748; see also Madeksho v.
Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448, 455 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied) (conclusory opinions in pleadings do not constitute
summary judgment evidence). Moreover, the statements in McCoy’s petition do
not support a causal nexus between the allegedly responsible party’s conduct and
the event sued upon. See Jelinek, 328 S.W.3d at 532. Instead, they are specifically
directed at Gunn’s—not the treating labor and delivery nurses’—alleged
negligence.
Gunn and OGA next point to this portion of Brewer’s testimony:
Q. It would have been important, would it not, for Mrs. McCoy to
have had the four units of FFP that Dr. Gunn ordered at 7:20 a.m.?
A. Yeah. . . .
They argue that Brewer did not need to use the “magic words” proximate cause.
However, again, this testimony is not sufficiently linked to any act or omission by
any treating nurse as a responsible party. In addition, Brewer’s statement amounts
to a mere conclusion that any negligence, even if committed by the treating nurses,
in not administering such ordered blood product proximately caused Shannon’s
34
brain injuries. Gunn and OGA do not point to any evidence in Brewer’s deposition
or elsewhere in the summary judgment-related evidence explaining how or why it
was important based on a reasonable medical probability for Shannon to have
received any ordered blood product. See Hodgkins, 99 S.W.3d at 674–75 (no
evidence raised fact issue on “causal connection between the negligent act and the
injury based on reasonable medical probability”); Blan, 7 S.W.3d at 748 (same);
see also Jelinek, 328 S.W.3d at 536 (expert must explain how and why negligence
caused injury).
With regard to Aubuchon, he expressly refused to provide an opinion
regarding “whether the nursing conduct was the proximate cause of any harm to
Shannon” and did not know whether any nursing conduct “would have changed the
outcome in the case.”29
Based on our review of the summary judgment record, even taking all the
evidence and making inferences in their favor, Gunn and OGA did not meet their
burden to raise a fact issue connecting the treating labor and delivery nurses’
negligent conduct with Shannon’s brain injury to a reasonable medical probability.
Therefore, the trial court did not err by granting no-evidence summary judgment in
favor of McCoy as to the affirmative defense of comparative responsibility.
3. Refusal of continuance
Finally, Gunn and OGA challenge the trial court’s refusal to grant a
continuance on McCoy’s motion for no-evidence summary judgment, arguing that
it was “patently unfair” to allow McCoy to preclude comparative responsibility on
29
Gunn and OGA do not point to any causation evidence in Alexander’s testimony.
Alexander in fact acknowledged that he was not going to testify that any nurse did anything
negligent in this case that caused any harm to Shannon. He also did not plan to testify as to what
caused Shannon’s brain injury.
35
summary judgment and then proceed to trial and present the same challenged facts
through Brewer.
Factors to consider when deciding whether a trial court clearly abused its
discretion in denying continuance of a summary judgment hearing include: the
length of time the case has been on file, the materiality and purpose of the
discovery sought, and whether the party seeking the continuance exercised due
diligence to obtain the requested discovery. Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150, 161 (Tex. 2004). Here, the litigation had been pending over five
years when McCoy filed his no-evidence summary judgment motion, and Gunn
and OGA had twice deposed Brewer. Moreover, Gunn and OGA failed to
adequately explain their failure to obtain the testimony sought and did not show
that the testimony could not be procured from another source. See Duerr v. Brown,
262 S.W.3d 63, 78–79 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Finally,
Gunn and OGA point to no statute or other authority preventing McCoy from
moving for no-evidence summary judgment as to comparative responsibility and
then proceeding to trial as they did here. Under such circumstances, it was Gunn’s
and OGA’s burden, not McCoy’s, to bring forth more than a scintilla of evidence
to withstand no-evidence summary judgment on the comparative responsibility of
the treating nurses. We overrule Gunn’s first issue and OGA’s second issue.
D. Legally sufficient evidence of $703,985.98 award for Shannon’s past
medical expenses
As their third and fifth issues, respectively, Gunn and OGA argue that
McCoy failed to put forth legally sufficient evidence of Shannon’s past medical
expenses, for which the jury awarded $703,985.98. Gunn and OGA argue because
McCoy did not offer expert testimony or affidavits in compliance with section
18.001 of the Texas Civil Practice and Remedies Code, there is no evidence that
36
Shannon’s past medical expenses were reasonable and necessary. They further
argue that McCoy presented no evidence of a causal link between Shannon’s
expenses and Gunn’s actions. Finally, Gunn and OGA challenge the lack of
segregation within the past expenses.
1. Applicable law
The amount of damages to which a plaintiff is entitled is generally a fact
question. Garza de Escabedo v. Haygood, 283 S.W.3d 3, 6 (Tex. App.—Tyler
2009), aff’d, Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011). A claim for
past medical expenses must be supported by evidence that such expenses were
reasonable and necessary. Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). Further, the plaintiff must produce evidence
from which the jury may reasonably infer that the claimed damages resulted from
the defendant’s conduct. Haygood, 356 S.W.3d at 399; Texarkana Mem’l Hosp.,
Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex. 1997).
A plaintiff may prove that medical expenses were reasonable and necessary
either by presenting expert testimony, or by submitting affidavits compliant with
section 18.001. Whitaker, 218 S.W.3d at 223; see Tex. Civ. Prac. & Rem. Code
Ann. § 18.001 (West 2013). An affidavit filed in compliance with section 18.001
is an exception to the hearsay rule. D & M Marine, Inc. v. Turner, 409 S.W.3d
693, 699 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (citing Hong v.
Bennett, 209 S.W.3d 795, 801 (Tex. App.—Fort Worth 2006, no pet.)); see Good
v. Baker, 339 S.W.3d 260, 271–72 (Tex. App.—Texarkana 2011, pet. denied).
Section 18.001 is “purely procedural, providing for the use of affidavits to
streamline proof of the reasonableness and necessity of medical expenses.”
Haygood, 356 S.W.3d at 397.
Section 18.001(b), as in effect at the relevant time, provided:
37
Unless a controverting affidavit is filed as provided by this section, an
affidavit that the amount a person charged for a service was
reasonable at the time and place that the service was provided and that
the service was necessary is sufficient evidence to support a finding of
fact by judge or jury that the amount charged was reasonable or that
the service was necessary.
Act of April 16, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3264
(amended 2013) (current version at Tex. Civ. Prac. & Rem. Code § 18.001). The
affidavit must:
(1) be taken before an officer with authority to administer oaths;
(2) be made by:
(A) the person who provided the service; or
(B) the person in charge of records showing the service
provided and charge made; and
(3) include an itemized statement of the service and charge.
Tex. Civ. Prac. & Rem. Code Ann. § 18.001(c) (West 2013); see also Act of May
22, 1993, 73rd Leg., R.S., ch. 248, 1993 Tex. Gen. Laws 549–51 (amended 2013)
(current version at Tex. Civ. Prac. & Rem. Code § 18.002) (providing sample
affidavit forms). An affidavit that substantially complies with section 18.001 is
sufficient. Tex. Civ. Prac. & Rem. Code Ann. § 18.002(c) (West 2013).
Section 18.001(d), as of the relevant time, provided that such affidavits must
be filed with the clerk and served on all other parties at least 30 days before trial
evidence is first presented. Act of 1987, 70th Leg., R.S., ch. 167, 1987 Tex. Gen.
Laws 1350 (amended 2013) (current version at Tex. Civ. Prac. & Rem. Code
§ 18.001). Procedures exist to challenge the reasonableness of the amount charged
and to challenge whether the treatments provided were necessary. In re Siroosian,
449 S.W.3d 920, 926 (Tex. App.—Fort Worth 2014, orig. proceeding) (citing
section 18.001(e)). Section 18.001 provides “for any dispute over reasonable and
38
necessary expenses to be teed up by affidavit.” Haygood, 356 S.W.3d at 399.
Under section 18.001(e), as of the relevant time, “[a] party intending to controvert
a claim reflected by the affidavit must file a counteraffidavit” with the clerk and
serve it on all other parties not later than 30 days after he receives a copy of the
affidavit and at least 14 days before trial evidence is first presented. Act of 1987,
70th Leg., R.S., ch. 167, 1987 Tex. Gen. Laws 1350 (amended 2013) (also
permitting counteraffidavit any time before trial with court’s leave). The
counteraffidavit must give reasonable notice of the basis on which the opposing
party intends to controvert the claim within the initial affidavit. Tex. Civ. Prac. &
Rem. Code Ann. § 18.001(f) (West 2013).
Where no counteraffidavit is filed, an affidavit presented in accordance with
section 18.001 is admissible. Flynn v. Racicot, No. 09-11-00607-CV, 2013 WL
476756, at *2 (Tex. App.—Beaumont Feb. 7, 2013, no pet.) (mem. op.); Hong, 209
S.W.3d at 801. Although not conclusive as to the amount of damages, a proper
section 18.001 affidavit constitutes legally sufficient evidence to support findings
of fact as to reasonableness and necessity. Christus Health v. Dorriety, 345
S.W.3d 104, 107 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see Tex.
Civ. Prac. & Rem. Code § 18.001(b) (West 2011); Nguyen v. Lijun Zhang, No. 01-
12-01162-CV, 2014 WL 4112927, at *7 (Tex. App.—Houston [1st Dist.] Aug. 21,
2014, no pet.) (mem. op.). Section 18.001 affidavits do not, however, establish the
requisite causal link between the occurrence and the plaintiff’s medical expenses.
Nguyen, 2014 WL 4112927, at *7; Dorriety, 345 S.W.3d at 108; see also
Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.—Eastland 1995, no
writ) (section 18.001 does not address causation).
So long as the requirements of section 18.001 are met and the opponent does
not file a proper controverting affidavit, a party may dispense with the
39
inconvenience and expense of obtaining an expert to testify as to the necessity and
reasonableness of expenses. Rodriguez-Narrera v. Ridinger, 19 S.W.3d 531, 532
(Tex. App.—Fort Worth 2000, no pet.).30 By filing a proper controverting
affidavit, the opposing party can prevent the offering party’s affidavits from being
used as evidence. City of Laredo v. Limon, No. 04-12-00616-CV, 2013 WL
5948129, at *6 (Tex. App.—San Antonio Nov. 6, 2013, no pet.); Hong, 209
S.W.3d at 801. By filing a proper controverting affidavit, the opposing party can
require the offering party to prove at trial the reasonableness and necessity of past
medical expenses through expert testimony. Nguyen, 2014 WL 4112927, at *7.
Here, a few months before trial, the Texas Supreme Court issued Haygood v.
De Escabedo. Haygood involved a personal-injury case arising from a car
accident. 356 S.W.3d at 392. There, 12 health care providers billed Haygood a
total of $110,069.12. Because Haygood was covered by Medicare Part B, and
because federal law prohibits health care providers from charging patients more
than Medicare deems reasonable, Haygood’s providers adjusted their bills
downward, leaving a total amount due of $27,739.43. Id. The trial court allowed
Haygood to introduce evidence of the full amounts initially billed by his providers,
and the jury awarded the full amounts as past medical expenses. The court of
appeals reversed. Id. In affirming the court of appeals, Haygood concluded that
the collateral source rule does not allow a plaintiff to recover medical expenses a
service provider is not entitled to charge. Id. at 396. The Haygood court also
30
See also Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 492 (Tex. App.—
Amarillo 2006, no pet.) (“[S]ection 18.001 provides a pretrial procedure to facilitate proof of the
cost and necessity of services by traditional means at trial by timely filing the statutory affidavit
before trial and is otherwise sufficient to satisfy the condition precedent of the statute.”); Turner
v. Peril, 50 S.W.3d 742, 746 (Tex. App.—Dallas 2001, pet. denied) (“Section 18.001 provides a
significant savings of time and cost to litigants, particularly in personal injury cases, by
providing a means to prove up the reasonableness and necessity of medical expenses.”).
40
construed section 41.010531 of the Texas Civil Practice and Remedies Code and
reasoned that “actually paid and incurred” means “expenses that have been or will
be paid, and excludes the difference between such amount and charges the service
provider bills but has no right to be paid,” such that section 41.0105 “limits a
claimant’s recovery of medical expenses to those which have been or must be paid
by or for the claimant.” Id. at 396–98. The Haygood court then considered
whether evidence showing the full amounts the plaintiff’s providers billed was
admissible and determined that only evidence of recoverable medical expenses—
those expenses that “have been or must be paid by or for the claimant”—is
admissible. Id. at 398–99. Evidence of charges for which the provider is not
entitled to payment is “irrelevant to the issue of damages” and inadmissible. Id. at
398. In addition, the jury should not be told that medical expenses will be covered
in whole or in part by insurance, or that a provider adjusted its charges because of
insurance. Id. at 400.
2. Proceedings in this case
This case presents a procedural wrinkle involving section 18.001 affidavits
that arises because Haygood issued during the midst of this litigation. Haygood
did not foreclose the use of section 18.001 affidavits. However, Haygood made
clear that where a claimant has medical insurance coverage (there, specifically
Medicare Part B): (1) recovery is limited to only those amounts that have been or
must be paid by or for the claimant, excluding the difference between such
amounts and charges the health care provider bills but has no right to be paid; (2)
anything beyond such recoverable amounts is irrelevant and inadmissible; and (3)
the jury should not hear that the claimant’s medical expenses are covered by
31
Section 41.0105 provides: “In addition to any other limitation under law, recovery of
medical or health care expenses incurred is limited to the amount actually paid or incurred by or
on behalf of the claimant.” Tex. Civ. Prac. & Rem. Code Ann. § 41.0105 (West 2013).
41
insurance or include insurance adjustments. Id. at 396–400. In other words, after
Haygood, plaintiffs like Shannon with medical insurance coverage could no longer
rely on evidence of medical expenses that included any amounts beyond the levels
health care providers had agreed to or otherwise had the right to be actually
reimbursed by the insurers. Moreover, plaintiffs like Shannon with medical
insurance coverage needed to submit evidence of recoverable amounts but without
informing the jury that such amounts had been adjusted or had been or would be
paid by their insurers.32
In March 2011, prior to Haygood, McCoy provided the trial court and Gunn
and McCoy with records affidavits and attached billing records from Shannon’s
medical service providers. The billing records contained information about
Shannon’s insurance providers, describing them as “payers.” The records also
included line-item entries for insurance payments, adjustments, and allowances.
Gunn and McCoy did not file any counteraffidavits.
After Haygood issued in July 2011, the relevance and admissibility of all of
McCoy’s already-submitted section 18.001 affidavits was thrown into question
32
As of the time of issuance, only three appellate cases have made any mention of
section 18.001 in the post-Haygood context. These cases, however, involved different facts. See
Katy Springs & Mfg., Inc. v. Favalora, — S.W.3d—, No. 14-14-00172-CV, 2015 WL 5093232,
at *14, 18 (Tex. App.—Houston [14th Dist.] Aug. 27, 2015, no. pet. h.) (uninsured plaintiff and
trial court granted plaintiff’s motion to strike counteraffidavit); Metro. Transit Auth. v.
McChristian, 449 S.W.3d 846, 853–54 & n.2 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(uninsured plaintiff, defendant filed counteraffidavits, and expert testified as to reasonableness
and necessity); Sutton v. Helwig, No. 02-12-00525-CV, 2013 WL 6046533, at *5 (Tex. App.—
Fort Worth Nov. 14, 2013, no pet.) (mem. op.) (pro se plaintiff provided neither affidavit nor
expert testimony as to reasonableness and necessity); see also Jamee Cotton, How Much Are You
Worth?: Why the Texas Supreme Court Took Tort Reform Too Far in Limiting the Admissibility
of Certain Medical Expenses During Trial, 45 Tex. Tech L. Rev. 565, 593–95 (2013) (discussing
uncertainty and glitches in connection with attorneys offering evidence of appropriate damages
via section 18.001 and also complying with Haygood).
42
with trial looming.33 In September 2011, over 50 days before trial commenced,
McCoy provided the trial court and Gunn and OGA with affidavits from
custodians of records for three subrogation companies and attached billing
summaries of the medical care claims paid on behalf of Shannon by her insurance
providers. The first affidavit attested to payment of $61,428.69; the second
affidavit attested to payment of $322,644.30; the third affidavit attested to payment
of $319,912.99. The attached billing summaries included: dates of treatment,
names of providers, descriptions of the treatment or diagnostic and service codes,
and paid amounts. The three billing summaries together totaled a paid amount of
$703,985.98. Again, Gunn and OGA filed no counteraffidavits.
At trial, McCoy’s counsel offered exhibits 15 through 17 related to
Shannon’s past medical expenses:
MR. KLEIN: 15, 16, and 17 . . . are the billing records that have been
proved up by the affidavits before and so we’re offering them as
having been proved up and the defendant has identified counter.
Affidavits cannot contest reasonable necessary expenses and the
business records and the business records affidavits are attached. So
they proved up the business records there which are indeed self-
authenticated and not hearsay under Rule 803[(]6[)].
And finally, we’ve proved them up under Civil Practice and
Remedies Section. The defendant offered to provide any counter
affidavit and the Court particularly ruled on that particular objection.
And at this time we offer 15, 16, and 17 which have been proved up.
Gunn’s counsel objected that the only permissible section 18.001 affidavits were
those made by medical providers and that no expert had testified whether
33
In 2013, the Texas Legislature amended section 18.002 to add an additional form
available for purposes of providing evidence of the reasonableness and necessity of medical
expenses. See Tex. Civ. Prac. & Rem. Code Ann. § 18.002(b-1) (West 2013). Further, the
Legislature added subsection (b-2): “If a medical bill or other itemized statement attached to an
affidavit under Subsection (b–1) reflects a charge that is not recoverable, the reference to that
charge is not admissible.” See id. § 18.002(b-2).
43
Shannon’s past damages were reasonable and necessary. McCoy’s counsel
responded:
These are the billing records. And what I proposed to the Court and
the affidavits that are filled out by the insurers showed the amount
paid to satisfy Haygood and it’s a summary and the last page gives the
total. And what I propose to do is if you will take the affidavits off
and permit merely the insurer records themselves. The affidavits are
to meet the requirement for the Court for evidentiary. So we tender
the affidavits to the Court and won’t go back to the jury, but will be
part of the record when the summaries go back to the jury and they
have been proved up and the business records. It’s been proved up in
the Civil Practice of Remedies Code and the Court has reasonably
approved. It’s proved up three ways.
Gunn’s counsel continued to argue no expert had ever testified that the billing
records “were all reasonable and necessary.” The trial court overruled Gunn’s and
OGA’s objection and admitted the billing summaries:
MR. KLEIN: This is reasonable, necessary expenses. They don’t get
to contest that and if they waive that by negotiating to file a counter
affidavit and that’s not proper. The fourth order has been previously
ruled on and her single objection is they have not proved reasonable,
necessary expenses. We don’t have to and have followed the rules
and proved up under 80[3(]6[)] and completely admissible and going
to withdraw the affidavits and submit them separately for the record
and get billing records signed which are proved up and introduce
those and offer those at this particular time. They don’t have to be
proved up by Dr. Willingham.[34] It’s not required and we complied
with the Rules.
THE COURT: I’ll admit 15, 16 and 17.
MS. HILBURN: Your Honor, if I may under Rule 80[3(]6[)], the only
way that these could be proved up by billing affidavit are those from
the medical health care providers, giving them to an insurance
company and having them provide a list.
34
Dr. Alex Willingham, a physical medicine and rehabilitation physician, testified for
McCoy regarding Shannon’s life care plan.
44
THE COURT: They can’t do it and they can’t prove up reasonable,
necessary expenses? And they can’t—
MS. HILBURN: No, Your Honor.
THE COURT: You may be right and I’ll—he’s the plaintiff and if the
evidence is right—I think he’s right.
MR. FEEHAN: Your Honor, I join in the objection to 15, 16 and 17.
THE COURT: The objection is overruled and 15, 16 and 17 is
admitted.
During the jury charge conference, Gunn and OGA requested that the jury
be asked about the past medical expenses “actually paid or actually incurred by or
on behalf of Shannon” in accordance with Haygood and section 41.0105. The trial
court determined that it would track the current PJC. See Texas Pattern Jury
Charges—General Negligence & Intentional Personal Torts (2010), PJC 15.3
(listing “i. Medical care expenses incurred in the past”).
Gunn and OGA objected to the submission of jury question 2.i. on
Shannon’s past medical expenses:
[T]here is legally insufficient evidence to support . . . Subpart I,
medical care expenses Shannon Miles McCoy incurred in the past.
We believe that the jury should be inquired about the medical and care
expenses she actually—that were actually paid by or on her behalf or
actually incurred by or on her behalf. And there is legally insufficient
evidence in this case of the amounts that were actually paid or actually
incurred under section 41.0105 of the Civil Practice and Remedies
Code.
THE COURT: Overruled.
MS. FAUST: We would also object to the submission of Subpart I,
medical expenses of Shannon Miles McCoy incurred in the past
because there is legally insufficient evidence that—of the
reasonableness and of the necessity for the medical expenses
submitted to—in evidence in this case, Your Honor. For that reason
Subpart I should not be submitted to the jury.
45
THE COURT: Overruled.
Gunn and OGA objected to question 2.i on no-evidence grounds and because it did
not inquire as to Shannon’s “paid and incurred” expenses. However, Gunn and
OGA did not object that the reasonableness and necessity aspects of recovery
should be included in question 2.i as discussed in the comments accompanying
section 15.3 of the PJC:
Reasonable expenses and necessary medical care. If there is a
question whether medical expenses are reasonable or medical care is
necessary, the following should be substituted for element[] i . . .:
i. Reasonable expenses of necessary medical care
incurred in the past.
Answer: _______________
See id. PJC 15.3 cmt.
Instead, question 2 asked the jury: “What sum of money, if paid now in cash,
would fairly and reasonably compensate Shannon Miles McCoy for her injuries, if
any, that resulted from the occurrence in question?” Subpart i. asked the jury to
provide a damages amount for “Medical care expenses Shannon Miles McCoy
incurred in the past.” The jury provided the figure $703,985.98.
3. Shannon’s past medical care expenses
On appeal, Gunn and OGA contend that there is no evidence of the
reasonableness and necessity of Shannon’s past medical expenses because the
subrogation affidavits did not comply with section 18.001 and were not in evidence
before the jury, and because McCoy did not provide expert testimony regarding
reasonableness and necessity.35 They do not complain of any charge error related
35
On appeal, Gunn and OGA do not argue any legal-sufficiency point based on section
41.0105 and Haygood.
46
to Shannon’s past medical expenses. Nor do they complain that reasonableness
and necessity should have been submitted to the jury in question 2.i.
Gunn and OGA did not controvert McCoy’s section 18.001 affidavits by
filing counteraffidavits, or otherwise impugn the reasonableness and necessity of
Shannon’s past medical expenses.36 Even if Gunn and OGA disputed
reasonableness and necessity, they did not object that these aspects of past medical
recovery should be submitted to the jury.
Consequently, we review the legal sufficiency of the evidence in light of the
jury charge as given, which did not require the jury to find reasonableness and
necessity. See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2003)
(citing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)); Williard Law Firm, L.P.
v. Sewell, 464 S.W.3d 747, 751 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
(“It is the court’s charge, not some other unidentified law, that measures the
sufficiency of the evidence when, as here, there was no objection to the relevant
portion of the charge.”).37
At trial, McCoy presented the three subrogation billing summaries. Exhibit
15 is a summary by the Rawlings Company detailing paid amounts for Shannon’s
medical care received from listed providers from September 14, 2004 to December
36
For example, Texas appellate courts have concluded that section 18.001 does not
prevent a defendant who did not file a counteraffidavit from crossing a plaintiff’s witnesses or
presenting argument. See Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at
*12 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.) (mem. op.); Grove v. Overby, No.
03–03–00700–CV, 2004 WL 1686326, at *6 (Tex. App.—Austin July 29, 2004, no pet.) (mem.
op.). And while they do not function as counteraffidavits, a defendant may raise a section 18.001
fact issue through custodians’ depositions. See Wald Tinkle Packaging & Distribution, Inc. v.
Pinok, No. 01-02-01100-CV, 2004 WL 2966293, at *9 (Tex. App.—Houston [1st Dist.] Dec. 23,
2004, no pet.) (mem. op.).
37
Therefore, we do not reach Gunn and OGA’s contention that, because the subrogation
affidavits themselves were not in evidence before the jury, they cannot support the jury’s finding
that Shannon’s past medical expenses were reasonable and necessary.
47
28, 2005. The sum of paid amounts in exhibit 15 is $61,428.69. Exhibit 16 is a
summary from Meridian Resource Co., LLC detailing paid amounts for Shannon’s
medical care received from listed providers from September 14, 2004 to December
23, 2007. The sum of paid amounts in exhibit 16 is $322,644.30. Exhibit 17 is a
summary faxed to McCoy’s counsel from VWA detailing paid amounts for
Shannon’s medical care received from listed providers from March 6, 2006 to
March 23, 2011. The sum of paid amounts in exhibit 17 is $319,912.99. The total
amount paid for Shannon’s past medical care expenses as reflected in these
exhibits is $703,985.98.
McCoy also presented this testimony from Brewer:
Q. The kind of care [Shannon] received whether she would have
gotten at Woman’s Hospital or St. Luke’s is something she needed?
A. I would say so.
Q. And then the care she got at TIRR, was that something she needed?
A. That’s a rehab, correct? Yeah.
Q. And the care she has gotten since then for her brain damage, is that
something she needed?
A. I absolutely think so.
Q. So when it comes to the cause for the need for all this medical
treatment later at Woman’s and then at St. Luke’s and then at TIRR
and afterward, was that caused by negligence of the defendant in your
opinion?
A. I think so. I think we’ve shown that time and time again.
Q. Have all the opinions that you have given today been based on a
reasonable degree of medical probability?
A. Yes, they have.
Evidence of medical care expenses Shannon incurred in the past. Gunn
and McCoy argue that, without affidavits, the admitted subrogation summaries
“lacked foundation and context” and harmed them where the jury awarded the
48
exact total of the summaries. However, they provide no authority for this position.
They also cite no case law concluding that section 18.001 affidavits themselves
always must be provided to the jury.38 Here, the subrogation affidavits were not
provided to the jury; they indicated that Shannon’s expenses had been covered by
insurance. See Haygood, 356 S.W.3d at 399–400 (jury should not be told amounts
will be covered in whole or in part by insurance, or about provider adjustments).
Gunn and OGA further argue that the billing summaries were inadmissible
and constitute no evidence because they did not comply with section 18.001. As
they did below, Gunn and OGA challenge the subrogation affidavits on the basis of
improper affiant, arguing that only records custodians for medical providers can
attest to reasonableness and necessity. We disagree. This court recently has
determined there is no requirement that an affidavit submitted under section
18.001(c)(2)(B) be made by a records custodian for a medical provider. Katy
Springs & Mfg., Inc. v. Favalora, — S.W.3d—, No. 14-14-00172-CV, 2015 WL
5093232, at *16 (Tex. App.—Houston [14th Dist.] Aug. 27, 2015, no. pet. h.)
(construing disjunctive “or” in section 18.001(c)(2) in rejecting argument that
records custodian affiant for company engaged in business of medical accounts
receivable financing or “factoring” was not a proper affiant because he was not
medical provider). We conclude that the billing summaries comply with section
18.001(c)(2).
On appeal, Gunn and OGA further argue that the subrogation affidavits did
not comply with section 18.001(c)(3), which provides that affidavits “include an
38
Gunn and OGA cite Nye v. Buntin, where the Austin Court of Appeals concluded that
the trial court did not abuse its discretion by excluding medical cost affidavits not timely filed
and served under section 18.001(d). See No. 03-05-00214-CV, 2006 WL 2309051, at *2–3 (Tex.
App.—Austin Aug. 11, 2006, pet. denied) (mem. op.). There is no dispute that McCoy timely
provided his affidavits. Nor does Nye stand for the proposition that section 18.001 affidavits
themselves always must be provided to the jury.
49
itemized statement of the service and charge.” See Tex. Civ. Prac. & Rem. Code
Ann. § 18.001(c)(3). For example, Gunn and OGA contend that services should
have been described in more detail, payment dates are incorrect, and there was no
key provided for the diagnostic and service codes. Gunn and OGA never objected
in the trial court on the basis that the affidavits included improperly itemized
statements of the service and charge and so waived this defect, if any. See Marvin
Frank Motor Co. v. Harris Cty., No. 01-02-01105-CV, 2004 WL 549487, at *2
(Tex. App.—Houston [1st Dist.] Mar. 18, 2004, pet. denied) (§ 18.001(d)
timeliness objection not preserved). Moreover, if Gunn and OGA took issue with
the specificity of any of the services and charges in the summaries attached to the
subrogation affidavits, section 18.001 provided them with the proper procedure to
controvert any claims and to provide notice of the basis of their disagreement to
McCoy—filing a proper counteraffidavit.
Evidence that Shannon’s past medical expenses “resulted from the
occurrence in question.” We also must determine whether there is legally
sufficient evidence supporting a causal nexus between Gunn’s conduct and
Shannon’s past medical expenses. See Haygood, 356 S.W.3d at 399; Murdock,
946 S.W.2d at 838. Gunn and OGA argue that McCoy tendered no proof
connecting any of the medical expenses reflected in exhibits 15 through 17 to
injuries alleged to have been sustained as a result of Gunn’s negligence. Brewer
provided her opinion that all the medical treatment and care Shannon received at
Woman’s, St. Luke’s, TIRR, and “since then for her brain damage” was to a
reasonable degree of medical probability caused by Gunn’s negligence. This
expert testimony sufficiently linked Shannon’s past medical damages to the
challenged medical conduct. See Dorriety, 345 S.W.3d at 108–10 (even though
expert did not review medical bills, he testified that “but for” failures of hospital,
50
none of patient’s subsequent medical care would have been necessary).
Gunn and OGA further argue that some of Shannon’s medical care was
unrelated to Gunn’s negligence and that, because McCoy did not segregate such
expenses, this renders his proof legally insufficient.39 Gunn and OGA primarily
rely on Murdock. Murdock was a medical malpractice case involving a child born
with serious congenital defects. 946 S.W.2d at 837. The child took in some
meconium while in utero. Id. The particular negligence at issue related to a
doctor’s aspiration of such meconium after birth, which caused additional
complications beyond the birth defects. Id. There, where there were multiple
conditions treated during multiple hospitalizations before the child eventually died,
the Texas Supreme Court concluded that the plaintiffs needed to prove which
treatments were attributable to the negligent meconium aspiration and the costs
associated with those treatments. Id. at 840. There, the expert testimony failed to
establish a causal link between all medical expenses and the particular injuries
caused by the negligent aspiration. Id. at 841.
Within the context of a legal-sufficiency challenge, this court has
distinguished Murdock in analogous circumstances. Dorriety was a medical
malpractice case involving a woman with diabetes insipidus, who had been
managing her condition with medication. 345 S.W.3d at 106. The patient entered
the hospital complaining of shortness of breath and was admitted with a diagnosis
of low sodium. Id. The treating doctors took her off her usual diabetes medication
and ordered strict monitoring of her fluid intake and output because of concerns
39
In its initial brief, OGA characterizes the lack of segregation as a factual-sufficiency
point. In its reply, however, OGA indicates that its segregation complaint is a legal-sufficiency
challenge. To the extent any factual-sufficiency challenge remains, after considering and
weighing all the evidence, we conclude that the evidence is not so weak nor is the finding clearly
wrong and manifestly unjust to set aside the verdict based on lack of segregation. See Jackson,
116 S.W.3d at 761–62.
51
about her sodium levels fluctuating. Id. The patient’s fluid output began to greatly
outpace her intake, but no one informed her doctors. Id. No one monitored her
vitals overnight, and the nurses failed to report a “panic level” sodium value to her
doctors for more than an hour. Id. at 106–07. The patient’s husband found her
unresponsive. Id. at 107. Specialists concluded nothing could be done to help the
patient recover from her coma. Id. She was discharged to hospice care and
ultimately died. Id. The defendant hospital challenged the jury’s award for past
medical expenses, arguing that some charges were incurred for items and services
before the incident, and some charges incurred after the incident were unrelated to
any negligence. Id. at 109–110.
We distinguished Murdock in Dorriety because the hospital’s negligence
caused the patient to suffer severe brain damage that became the focus of her
medical care until her death. Dorriety, 345 S.W.3d at 110. In addition, unlike in
Murdock, there was no equivocal expert testimony that only certain “therapeutic
maneuvers” were related to the negligence. Dorriety, 345 S.W.3d at 110. We
further noted the jury may have allowed that the hospital’s negligence greatly
complicated the treatment of the patient’s underlying diabetes, and that any
subsequent expenses attributable to her underlying diabetes or high blood pressure
were de minimis. Id. at 111.
We find Dorriety instructive here. Shannon presented to the hospital with
placental abruption and an underlying clotting disorder not attributable to Gunn’s
negligence. Without identifying any specific charges, Gunn and OGA contend that
Shannon received treatment before Gunn’s alleged negligence. However, there
was evidence that from the time she took over Shannon’s care at approximately
4:00 a.m. on September 14, 2004, Gunn’s negligence in treating Shannon’s DIC
caused her to continue losing blood volume; become hemodynamically unstable,
52
which aggravated her uterine atony; and ultimately suffer severe brain damage that
was and continues to be the focus of her around-the-clock medical care. See
Dorriety, 345 S.W.3d at 109–10. Brewer similarly linked the brain injuries caused
by Gunn and Shannon’s subsequent medical care. See id. at 108, 110. Again
without identifying any specific charges, Gunn and OGA assert Shannon later
received treatment for a pulmonary embolism and a stroke unrelated to Gunn’s
negligence. However, McCoy’s life care expert Dr. Alex Willingham testified
there was no functional difference in the fulltime medical care Shannon required
before and after she suffered these complications.40 Therefore, the jury could have
determined any additional care that could be segregated out was not worth
subtracting from her total medical expenses. See id. at 111.
As measured against question 2.i. presented to the jury in the charge,
considering only the evidence and reasonable inferences favorable to the jury’s
past medical expenses finding, and disregarding all evidence and inferences to the
contrary because a reasonable juror could do so, we conclude that the evidence is
legally sufficient to support the jury’s award of $703,985.98 for Shannon’s past
medical expenses. We overrule Gunn’s third issue and OGA’s fifth issue.
E. Shannon’s future medical expenses
Next, in two related issues, Gunn and OGA challenge the jury’s award for
Shannon’s future medical expenses. As OGA’s third issue, adopted by Gunn as
her seventh issue, Gunn and OGA argue that the trial court committed reversible
error by excluding the testimony of the defense’s designated life care expert Dr.
Helen Schilling. As Gunn’s fourth issue, adopted by OGA, Gunn and OGA argue
40
Gunn and OGA also contend McCoy’s counsel acknowledged that Shannon suffered a
foot burn several years after the occurrence. Although the trial court denied McCoy’s motion in
limine, Gunn and OGA did not put on any foot-burn evidence.
53
that the evidence is legally insufficient to support $159,854 of the jury’s award.
1. Schilling’s testimony
We first consider the exclusion of Schilling’s testimony. We review a trial
court’s exclusion of an expert witness for abuse of discretion. See Gammill, 972
S.W.2d at 718–19. To establish reversible error based on the erroneous exclusion
of evidence, the complaining party must prove three things: (1) the trial court
erroneously excluded the evidence; (2) the excluded evidence was controlling on a
material issue and not cumulative of other evidence; and (3) the error probably
caused the rendition of an improper judgment. Coterill-Jenkins v. Tex. Med. Ass’n
Health Care Liab. Claim Trust, 383 S.W.3d 581, 593 (Tex. App.—Houston [14th
Dist.] 2012, pet. denied); see Tex. R. App. P. 44.1; Tex. Dep’t of Transp. v. Able,
35 S.W.3d 608, 617 (Tex. 2000). “[A] successful challenge to evidentiary rulings
usually requires the complaining party to show that the judgment turns on the
particular evidence excluded or admitted.” Able, 35 S.W.3d at 617. In
determining if the exclusion was harmful, we review the entire record. See id.
Here, at trial, when Gunn and OGA sought to introduce the video deposition
testimony of Schilling, McCoy objected because the video segment at issue did not
contain the predicate to establish Schilling’s qualifications as an expert witness.
The trial court agreed and refused to allow the playing of Schilling’s deposition,
but acknowledged that Schilling could testify live at trial to the basis for her
expertise. Gunn and OGA chose not to call Schilling as a live witness—they
presented an offer of proof instead.
Gunn’s and OGA’s offer of proof provided details about Schilling’s training
and practice as a physical medicine and rehabilitation physician, her experience
teaching residents in that field, her experience as a hospital medical director, her
preparation of life care plans as part of her daily practice in similar areas of care as
54
Willingham prepared for Shannon, and her review of Shannon and of
Willingham’s prepared life care plan for Shannon. Gunn and OGA also submitted
Schilling’s marked-up copy of Willingham’s life care plan for Shannon.
Even assuming that the trial court erred in excluding Schilling’s testimony
and the annotated plan, we conclude Gunn and OGA have failed to show harm.
Gunn and OGA argue that they suffered harm because McCoy was able to present
“unchallenged” testimony of anticipated future medical care damages. They insist
that “[h]ad the jury heard Schilling’s testimony, it may well have reduced its award
for future damages by as much as $3.6 million.” This position disregards that
during direct examination Willingham acknowledged that his opinion was not
unchallenged. He testified regarding Schilling’s line-item annotations to his life
care plan—removing some items altogether as not reasonably medically necessary
and reducing the frequency or cost of others—which had the effect of reducing his
projected costs. Willingham stated that Schilling’s criticisms reduced his option 1
(home setting) projected costs from approximately $6.9 million to $3.3 million,
and reduced his option 2 (private facility) projected costs from approximately $7.4
million to $6.7 million.41 During cross-examination, the trial court admitted a
defense exhibit consisting of Willingham’s life care cost analysis. Willingham
again acknowledged Schilling’s differing opinions and how he came up with
“those Schilling numbers.” Therefore, in addition to being presented with
Willingham’s figures for options 1 and 2, the jury was made aware of the reduced
figures attributed to Schilling and why she reduced them.
Gunn and OGA further assert that they were harmed because the jury award
41
Schilling’s main criticism of option 1 was that home health care costs should only be
provided for 8, not 24, hours. Willingham explained this was not “workable” because Shannon
required around-the-clock care. With regard to option 2, Schilling did not reduce the per diem
facility rate. Willingham also stated that Schilling removed all therapy services. Previously in
his testimony, Willingham had explained why Shannon required such therapy.
55
“probably included damages for future care of conditions not caused by the alleged
negligence.” However, as discussed previously, Willingham testified as to the lack
of functional difference in the nature of the fulltime care Shannon required before
and after her pulmonary embolism and stroke. Gunn and OGA also emphasize that
future medical care was the largest component of the jury award; however, the key
dispute throughout this case involved liability. Although she disagreed with
Willingham’s projections, Schilling did not dispute that Shannon required
significant—several millions of dollars in—future medical care and that one
available option was private facility-based care. See Rauch v. Patterson, 832
S.W.2d 57, 62 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (“By their
very nature, future medical expenses are uncertain and not subject to exact
measurement.”). In other words, the judgment was not controlled by nor did it turn
on her testimony. See Able, 35 S.W.3d at 617.
Based on our review of all the evidence, admitted and excluded, we
conclude that Gunn and OGA have failed to make the requisite showing that they
were harmed by the trial court’s evidentiary ruling. See Coterill-Jenkins, 383
S.W.3d at 593. We overrule OGA’s third issue and Gunn’s seventh issue.
2. Legally insufficient evidence to support $7,242,403.00 award for
Shannon’s future medical care expenses
Next, we consider Gunn’s and OGA’s argument that a specific portion of the
jury award for Shannon’s future medical expenses is not supported by legally
sufficient evidence. Gunn and OGA specifically focus on the portion of damages
in Willingham’s life care plan attributable to “potential needs not within medical
reasonable probability.”
To recover for future medical expenses under Texas law, a plaintiff must
provide evidence showing a reasonable probability that the medical expenses will
56
be incurred in the future, and the probable cost of such expenses. See Whole Foods
Mkt. Sw., L.P. v. Tijerina, 979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.]
1998, pet. denied). Although the preferred method is through expert medical
testimony, no precise evidence is required to support an award for future medical
costs. Id. It is within the jury’s sound discretion to determine what amount, if any,
to award in future medical expenses. Id. “This standard of review, however, is not
so nebulous that a reviewing court will uphold a jury award for future medical
expenses when there is no evidence.” Id. at 781–82 (internal quotation marks
omitted).
During Willingham’s direct, when McCoy’s counsel began discussing trial
exhibit 1342—a one-page cost analysis summary of the two options in
Willingham’s life care plan—Gunn and OGA objected that testimony regarding
Shannon’s “potential life care needs” referenced in the summary was not relevant
because these needs were merely possible instead of within reasonable medical
probability. Gunn and OGA also requested that the exhibit be redacted to remove
this category of costs. McCoy’s counsel explained the costs were relevant to show
Shannon’s life care plan did not include everything, but he would “be very clear”
that McCoy was not seeking recovery for these potential costs. The trial court
overruled the objection and granted a running objection. Willingham went on to
discuss examples of costs included within the “potential care needs” category
under both options and agreed that McCoy was not asking the jury to include these
possible but “not likely to occur” amounts.
The next day, McCoy presented Ken McCoin, an economist who had
calculated the present-day costs of Shannon’s future medical expenses. When
McCoy’s counsel started to ask McCoin questions about a summary exhibit of
42
This exhibit had been previously admitted without objection.
57
economic damages, Gunn and OGA objected to the exhibit, arguing that evidence
of the present-day costs of potential future medical care needs was not relevant and
would mislead the jury. McCoy’s counsel again emphasized that he would “make
very clear we’re not asking for it time after time after time.” The trial court
overruled the objection, granted a running objection, and admitted exhibit 14.
McCoin’s testimony reflected that the present-day costs of Shannon’s future
expected medical expenses—adjusted for inflation and reduced to present value—
for option 1 was “just over $6.6 million,” and for option 2 was “slightly over $7
million.” McCoin explained that the “potential” category of present-day costs for
both options 1 and 2 reflected costs of $159,854.00 that were possible but not
probable.
Despite McCoy’s counsel’s insistence that he would make it clear to the jury
McCoy was only seeking reasonably probable and not potential future medical
expenses, during closing he merely directed the jury to the numbers contained in
exhibit 14 so that it could fill in the “most important” damages blank. Question
2.j. asked the jury to provide a damages amount for “Medical care expenses that, in
reasonably [sic] probability, Shannon Miles McCoy will incur in the future.” The
jury provided the figure $7,242,403.00, which corresponds to the number provided
in the “totals” column for option 2 on exhibit 14. However, this figure includes
both the present-day costs for permissible probable expenses ($7,082,549.00) and
for impermissible possible expenses ($159,854.00). We therefore sustain Gunn’s
fourth issue.
Because there is legally sufficient evidence to support $7,082,549.00 of the
jury’s damages award for Shannon’s future medical expenses, we exercise our
power to suggest a voluntary remittitur of $159,854.00. See Tex. R. Civ. P. 46.3;
Matbon, Inc. v. Gries, 288 S.W.3d 471, 485–86 (Tex. App.—Eastland 2009, no
58
pet.).
F. Jury charge issues
As OGA’s fourth issue, adopted by Gunn as her fifth issue, Gunn and OGA
argue that the trial court committed harmful charge error by failing to include
instructions: (1) regarding not considering the conduct of the nurses; (2) on
unavoidable accident; and (3) on new and independent cause.
The trial court has considerable discretion to determine proper jury
instructions—we evaluate the court’s decisions to submit or refuse particular
instructions for abuse of discretion. Thota v. Young, 366 S.W.3d 678, 687 (Tex.
2012); Pochron v. Oleksy, No. 14-12-00650-CV, 2014 WL 494894, at *2 (Tex.
App.—Houston [14th Dist.] Feb. 6, 2014, no pet.) (mem. op.). An instruction is
proper if it: (1) assists the jury, (2) accurately states the law, and (3) finds support
in the pleadings and the evidence. Hawley, 284 S.W.3d at 855–56. A trial court is
afforded more discretion when submitting instructions than when submitting
questions. Towers of Town Lake Condo. Ass’n, Inc. v. Rouhani, 296 S.W.3d 290,
295 (Tex. App.—Austin 2009, pet. denied). We do not reverse a judgment based
on charge error unless the error probably caused the rendition of an improper
verdict. See Tex. R. App. P. 44.1.
1. Instruction to not consider the nurses’ conduct
With regard to their requested instruction on not considering the nurses’
conduct in considering the negligence of Gunn, Gunn and OGA rely on Hawley
and Sparger v. Worley Hospital, Inc., 547 S.W.2d 582 (Tex. 1977). Neither case
controls here.
In Hawley, the Texas Supreme Court concluded the trial court abused its
discretion where the refused instruction—that the jury should not consider the
59
conduct of a particular doctor when determining the hospital’s negligence—
effectively functioned as a limiting instruction to ensure that the jury was not
confused about the doctor’s status as an independent contractor, and not an agent
of the defendant hospital. 284 S.W.3d at 863–64. In Sparger, a case where the
jury found the defendant hospital negligent and the defendant doctor was not
negligent, and specially found that the nurses were not the borrowed servants of
the defendant doctor, the Court disapproved of the captain of the ship doctrine, “a
false special rule of agency.” 547 S.W.2d at 582–84, 585–86. There were no
similar agency issues here. The jury was solely asked about Gunn’s negligence
and liability. Unlike in Hawley, the jury was not instructed that Gunn acted or
failed to act through any other person as her agent, nor was there any borrowed
servant issue as in Sparger. We conclude that the trial court did not abuse its
discretion in refusing this instruction.
2. Instruction on unavoidable accident
Next, Gunn and OGA contend the trial court erred by refusing to submit an
instruction that an occurrence may be an unavoidable accident, that is, an event not
proximately caused by the negligence of any party to the occurrence. They point
to Aubuchon’s testimony regarding how DIC involves “little floating clots” that
block off oxygen flow and defense expert Dr. Martin Steiner’s testimony that the
primary cause of Shannon’s brain injury was DIC-induced microthrombi.
An unavoidable accident is “an event not proximately caused by the
negligence of any party to it.” Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.
1995) (citing Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379,
385 (1952)). The purpose of this inferential rebuttal instruction is to ensure that
the jury will understand that “they do not necessarily have to find that one or the
other parties to the suit was to blame for the occurrence complained of.” Id. (citing
60
Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971)). “The instruction is
most often used to inquire about the causal effect of some physical condition or
circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction of
view, or to resolve a case involving a very young child who is legally incapable of
negligence.” Id. (citing Hill v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex.
1992)). An unavoidable accident instruction must be supported by the evidence,
and is proper only where there is evidence that the event was proximately caused
by a condition beyond the defendant’s control and not by the negligence of any
party to the event. Rouhani, 296 S.W.3d at 300; see Hill, 849 S.W.2d at 803.
Here, through no fault of Gunn, Shannon presented at Woman’s with
placental abruption and DIC. But there was no testimony that Shannon’s placental
abruption and DIC were “catastrophic” complications “predetermined” to result in
severe brain damage from the moment she arrived at Woman’s. Cf. Williams v.
Viswanathan, 64 S.W.3d 624, 629 (Tex. App.—Amarillo 2001, no pet.) (decedent
had “catastrophic lung injury” at the time he arrived at the hospital and that his
chances of living were about five percent); Wisenbarger v. Gonzales Warm
Springs Rehab. Hosp., Inc., 789 S.W.2d 688, 693 (Tex. App.—Corpus Christi
1990, writ denied) (development of plaintiff’s decubitus ulcer was “inevitable” and
“predetermined”). Instead, there was evidence that Gunn knew about, and had the
ability to control the severity of, Shannon’s DIC. Defense expert Dr. James
Alexander, a maternal-fetal specialist, testified: “In an abruption, after delivery, a
DIC will correct. You must replace [blood] products with that, but the process will
stop.” Kirshon had “hope” that with proper blood products Shannon’s DIC would
resolve post-delivery. However, there was evidence that Gunn did not properly
manage Shannon’s DIC through infusion of FFP to replace her clotting factors, and
Gunn “fell behind” and did not adequately resuscitate Shannon’s blood volume.
61
Moreover, Gunn’s and OGA’s requested instruction was not reasonably
necessary to enable the jury to render a proper verdict. See Shupe v. Lingafelter,
192 S.W.3d 577, 579 (Tex. 2006). Here, question 1 asked the jury whether Gunn’s
“negligence, if any,” proximately caused the occurrence and instructed the jury to
answer yes or no. Based on the evidence, the jury answered yes. See Dallas Area
Rapid Transit v. Morris, 434 S.W.3d 752, 763 (Tex. App.—Dallas 2014, pet.
denied) (no abuse of discretion in refusing instruction). In addition, question 1
contained a “bad result” instruction, informing the jury that it could not base its
negligence finding solely on evidence of a bad result but could consider a bad
result in conjunction with other evidence.43 In other words, the jury could not base
its negligence finding on solely a bad result from Shannon’s placental abruption
and DIC. See Chesser v. LifeCare Mgmt. Services, L.L.C., 356 S.W.3d 613, 636–
37 (Tex. App.—Fort Worth 2011, pet. denied) (no abuse of discretion in refusing
instruction (citing Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 434 (Tex. 2005)).
Finally, Gunn and OGA have not provided, nor have we located, any
authority concluding that it was error to refuse to submit an unavoidable accident
instruction. See Rouhani, 296 S.W.3d at 301 (“Significantly, though, while the
supreme court has held that the trial court may, in its discretion, submit the
instruction under such circumstances, it has not held that it is an abuse of discretion
not to do so.”). We conclude that, under these circumstances, the trial court did not
abuse its discretion by refusing such instruction.
3. Instruction on new and independent cause
Gunn and OGA further argue that the amount of Propofol used to sedate
43
We recognize that a “bad result” instruction is statutorily required, see Tex. Civ. Prac.
& Rem. Code Ann. § 74.303(e)(2) (West 2013), and is directed more to the negligence than the
causation issue, see Williams, 64 S.W.3d at 630.
62
Shannon prior to her hysterectomy, as well as Shannon’s later pulmonary embolus
and stroke, warranted an instruction on new and independent cause.
A new and independent cause of an occurrence is the act or omission of a
separate and independent agent, not reasonably foreseeable, that destroys the
causal connection, if any, between the act or omission inquired about and the
occurrence in question. Hawley, 284 S.W.3d at 856; Dew v. Crown Derrick
Erectors, Inc., 208 S.W.3d 448, 450–51 (Tex. 2006) (plurality opinion). A new
and independent cause is one that intervenes between the original wrong and the
final injury such that the injury is attributed to the new cause rather than the first
and more remote cause. Dew, 208 S.W.3d at 450.
Courts are guided by the factors set out in section 442 of the Restatement
(Second) of Torts:
(a) the fact that the intervening force brings about harm different in
kind from that which would otherwise have resulted from the actor’s
negligence;
(b) the fact that its operation or the consequences thereof appear after
the event to be extraordinary rather than normal in view of the
circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of
any situation created by the actor's negligence, or, on the other hand,
is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third
person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person
which is wrongful toward the other and as such subjects the third
person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which
sets the intervening force in motion.
Hawley, 284 S.W.3d at 857–58.
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Having reviewed the record in light of these factors, we conclude that the
trial court did not abuse its discretion by refusing to submit a new and independent
cause instruction with regard to the Propofol. Any excessive dose of Propofol did
not implicate a different harm than Gunn’s failures where both implicated the risk
of cardiac arrest; did not later appear to yield extraordinary consequences in view
of the circumstances existing at the time; and did not operate independently of any
situation created by Gunn’s negligence where the dose would be considered
“normal” but for Shannon’s substantial blood loss. Even assuming the
anesthesiologist acted negligently with regard to not adjusting the dosage, we
cannot conclude that this act in prepping Shannon for emergency surgery was an
unforeseeable force sufficient to sever the causal connection between Gunn’s
original act in failing to manage Shannon’s blood loss situation and her brain
injury. See Hawley, 284 S.W.3d at 857–59; Dew, 208 S.W.3d at 451–53; Henley
v. Crawford, No. 04-07-00104-CV, 2008 WL 34734, at *3–6 (Tex. App.—San
Antonio Jan. 2, 2008, no pet.) (“An intervening cause that is set in motion by the
original wrongdoer can never supersede the original act.”).
The alleged new and intervening causes of pulmonary embolism and stroke
occurred over a year after Gunn’s negligence and Shannon’s original brain injury.
Assuming that application of the Restatement factors is appropriate here, the
factors do not clearly fall in favor of providing the instruction. Even if Shannon’s
later pulmonary embolism and stroke could be considered extraordinary
consequences in view of the existing circumstances at the time and may not be
considered normal results of Gunn’s negligence in failing to manage Shannon’s
DIC, Shannon already was suffering severe brain deficiencies requiring fulltime
care as of September 14, 2004, prior to these 2005 and 2007 occurrences. Further
weighing against the instruction, these later conditions implicated similar risks of
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brain injury and were not due to any third party’s wrongful or culpable act or
omission. We cannot conclude that these later intervening conditions rise to the
level of superseding causes. See Hawley, 284 S.W.3d at 857–59; Dew, 208
S.W.3d at 451–53; Henley, No. 04-07-00104-CV, 2008 WL 34734, at *3–6.
Therefore, the trial court did not abuse its discretion in refusing to submit this
instruction with regard to Shannon’s later medical complications.44
We overrule OGA’s fourth issue and Gunn’s fifth issue.
G. Indemnification
Finally, as Gunn’s sixth issue, she argues that “OGA’s claim for common-
law indemnity will not be ripe until there is a final judgment payable on appeal.”
Essentially, Gunn’s position is that OGA is not permitted to pursue inconsistent
positions—that Gunn was not negligent but OGA is entitled to indemnity from
her—simultaneously after verdict.
While an indemnitor may bring an indemnity cause of action prior to
accrual, such cause of action accrues when “the indemnitee’s liability to the party
seeking damages becomes fixed and certain, generally by a judgment.” See Am.
Star Energy & Minerals Corp. v. Stowers, 457 S.W.3d 427, 432–33 (Tex. 2015)
(citing Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 208–09 (Tex.
1999) (internal quotation marks omitted)). Gunn has not provided us with, and we
have not located, any authority indicating that an indemnity claim only ripens
when any related liability appeal is completed. We conclude that OGA’s common-
law indemnity claim was ripe for determination when the trial court rendered its
44
Gunn includes—without any briefing—an additional subissue regarding the trial
court’s alleged harmful error in “refusing to instruct the jury” on comparative responsibility. We
already have determined that the court did not err by granting no-evidence summary judgment on
this affirmative defense. We overrule this subissue.
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judgment against Gunn. Gunn presents no other argument for reversal of the trial
court’s indemnity finding. Nor has Gunn challenged the trial court’s finding that
OGA was vicariously liable for the negligence of Gunn based on respondeat
superior. We overrule Gunn’s sixth issue.
III. CONCLUSION
We conclude that the evidence is legally insufficient to support the award of
$7,242,403.00 in damages for Shannon’s future medical expenses, but the evidence
is legally sufficient to support an award of future medical expenses of
$7,082,549.00. We suggest a remittitur of $159,854.00. If McCoy files in this
court such suggested remittitur within 20 days after the issuance of our opinion, we
will modify the trial court’s judgment to reduce the award of future medical
expenses to $7,082,549.00, and affirm the judgment as modified. If the remittitur
is not timely filed, then we will let stand our current judgment reversing the trial
court’s judgment and remanding the cause for a new trial.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Jamison, and Brown.
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