Nadine Hamilton, Nee Nadine Lambert v. Selma P. Wilson, M.D. ( 2006 )

NO. 07-06-0071-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 1, 2006
______________________________
NADINE HAMILTON, nee NADINE LAMBERT,
Appellant
v.
SELMA P. WILSON, M.D.,
Appellee
_________________________________
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-527,568; HON. SAM MEDINA, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1
Nadine Lambert (now Hamilton but hereinafter referred to as Lambert) appeals from
a summary judgment entered in favor of Dr. Selma P. Wilson (Wilson). The latter had
been sued by Lambert for damages arising from the doctor’s purported negligent acts while
intubating Lambert. Wilson filed a motion for summary judgment, asserting that no
evidence illustrated 1) she “committed any act or omission” constituting negligence, and
1
John T. Boyd, Chief Justice (Re t.), Seventh C ourt of Appeals, sitting by assignment. Tex. Gov’t Code
Ann. §75.00 2(a)(1) (V erno n 20 05).
2) any act or omission she undertook “proximately caused injury, harm, or damage to”
Lambert. The trial court granted the motion. Before us, Lambert contends that it erred in
doing so because she presented more than a scintilla of evidence illustrating the standard
of care, its breach, and proximate nexus between the breach and her resulting injuries.
We affirm.
Standard of Review
When reviewing a decision granting a no-evidence motion for summary judgment,
we are obligated to determine whether more than a scintilla of evidence supporting the
challenged element appears of record. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148
S.W.3d 94, 99 (Tex. 2004). More than a scintilla appears if its sum total allows reasonable
and fair-minded people to differ in their conclusions viz the existence of the disputed fact.
Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). The
standard of review also requires us to examine the record in a light most favorable to the
non-movant, id.; Alashmawi v. IBP, Inc. 65 S.W.3d 162 S.W.3d 162, 170 (Tex.
App.–Amarillo 2001, pet. denied), accept as true all evidence favorable to the non-movant,
Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.–Houston [14th Dist.] 2005, no pet.),
indulge, in a manner favoring the non-movant, in all reasonable inferences susceptible
from the evidence, id., and disregard all contrary evidence and inferences. Alashmawi v.
IBP, Inc., 65 S.W.3d at 170. However, it must be remembered that conclusory statements,
even from experts, are not sufficient to support or defeat summary judgment. Wadewitz
v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997); see Brownlee v. Brownlee, 665 S.W.2d
111, 112 (Tex. 1984) (finding the affiant’s statement to be conclusory because it failed to
2
specify factual matters such as the time, place, and exact nature of the alleged
modifications). And, such statements include expressions of subjective belief lacking
explanation. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996);
Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994).
We further note that to recover upon a claim of medical malpractice, the
complainant must prove 1) the physician had a duty to act according to a certain standard,
2) he breached that standard, and 3) the breach proximately caused the complainant to
sustain injury. Schneider v. Haws, 118 S.W.3d 886, 889 (Tex. App.–Amarillo 2003, no
pet.). To the extent that the opinions of an expert are needed to establish these elements,
see id. at 892-93 (recognizing that testimony from an expert may not always be needed to
prove medical malpractice), those opinions must not be founded upon mere possibilities,
speculation, or surmise. Archer v. Warren, 118 S.W.3d 779, 782 (Tex. App.–Amarillo
2003, no pet.). One must look to the basis of the opinion as opposed to the bare opinion
itself. Id. Moreover, this is nothing more than a reiteration of the teachings of Wadewitz,
Continental, Texas-Division, and Brownlee. As illustrated by the latter, conclusion or
opinions without factual support fall short of being evidence. See Brownlee v. Brownlee,
supra (stating that the proffer of a conclusion without factual support was not enough to
stave off a directed verdict). With that said, we turn to the record before us.
Application of the Foregoing Standard
As previously mentioned, Lambert complained of acts allegedly performed by
Wilson while being intubated for purposes of administering anesthesia. These acts
purportedly resulted in Lambert suffering a torn esophagus. Furthermore, the standards
3
of care appearing in the record obligated Wilson 1) “to put the endotracheal tube in the
trachea . . . [it] does not necessarily require you to recognize which wrong spot you’ve got
it in or whether it’s somewhere else . . . [but] requires you to recognize that it is or is not in
the trachea,” 2) “[e]stablish and maintain control of the patient’s airway during general
anesthesia,” 3) “[e]stablish this control in a safe manner,” 4) “[p]romptly recognize and
document injuries and complications related to airway management,” and 5) “[p]romptly
seek appropriate treatment, if needed, for such injuries and complications.” Wilson
allegedly breached one or more of these standards when she 1) “[f]ailed to establish
control of the airway in a safe manner,” 2) “[f]ailed to recognize and document injuries and
complications related to airway management,” 3) “[f]ailed to seek appropriate treatment for
such injuries and complications,” 4) “push[ed] the 7.5 endotracheal tube down into the
esophagus,” 5) “plac[ed] the tube,” and 6) perforated Lambert’s esophagus. Implicit in all
this discussion about standards of care, their breach, and Lambert’s suffering of a torn
esophagus is the entry of the tube into Lambert’s esophagus. In other words, for her to
recover, Lambert must present more than a scintilla of evidence showing that Wilson
inserted a tube into Lambert’s esophagus. If she cannot, then Wilson breached none of
the standards of care propounded or caused Lambert to suffer the injury underlying her
claim, i.e. a torn esophagus. And, therein lies the problem for no such evidence appears
of record.
Admittedly, Wilson acknowledged that she could not discount the “possibility” that
she placed the 7.5 mm tube into Lambert’s esophagus. Yet, as we said in Archer, “opinion
evidence must be based upon more than possibilities . . . .” Archer v. Warren, 118 S.W.3d
at 782 (emphasis added). So, what Wilson described as a possibility is of no import.
4
So too do we recognize that Lambert’s expert also addressed whether the tube
entered her esophagus. Moreover, he opined, based on reasonable medical probabilities
that it did. Yet, in explaining why he so concluded, he relied upon Wilson’s statement
(appearing in her medical report) that she encountered a “tight fit” when attempting to pass
Lambert’s vocal cords. In explaining what he considered to be the source of the “tight fit,”
the doctor stated that “[i]t is my belief that it was the cricopharyngeal ring of the esophagus”
and that “[m]y belief is that the tube was in that portion of the esophagus . . . when it
became too tight.” (Emphasis added). Upon what evidence or facts, if any, he founded
these beliefs went unmentioned, however. Nor did he cite to anything in the medical
records to support his belief. In other words, his “belief” was simply that, his “belief,” and
lacking factual explanation, it was conclusory and constituted no summary judgment
evidence. This particular expert also wrote in his report that “the fact . . . the first
endotracheal tube was too large suggests that it would deflect from the vocal cords and
enter the esophagus” but he did not state that the tube so deflected or describe how the
tube could so deflect from one part of the anatomy into another. Simply put, the expert is
again discussing possibilities.
Finally, that the surgeon who remedied the tear may have opined that it occurred
during Wilson’s intubation of Lambert is also deficient. It too is nothing more than a
hypothesis without explanation.
In sum, the possibility and subjective belief that Wilson inserted an endotracheal
tube into Lambert’s esophagus are simply conclusions. As such, they are not evidence
that proves the questioned fact. Consequently, we have no evidence that the tube entered
5
the esophagus, which, in turn, means that Lambert failed to present more than a scintilla
of evidence that Wilson breached any purported standard of care.
Accordingly, we overrule appellant’s issues and affirm the summary judgment.
Brian Quinn
Chief Justice
6