Enrique N. Ponte, Jr. M.D. and Pediatrix Medical Services, Inc. v. Marcela and Jose Bustamante ( 2014 )

Reversed and Rendered and Opinion Filed December 31, 2014
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-12-01394-CV
ENRIQUE N. PONTE, JR. M.D., PEDIATRIX MEDICAL SERVICES, INC.,
JORGE FABIO LLAMAS-SOFORO, M.D., AND JORGE FABIO
LLAMAS-SOFORO, M.D., P.A. D/B/A EL PASO EYE CENTER, Appellants
V.
MARCELA BUSTAMANTE AND JOSE BUSTAMANTE,
AS NEXT FRIENDS OF DANIELLA BUSTAMANTE, Appellees
On Appeal from the 101st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 08-08056
OPINION
Before Justices O’Neill, FitzGerald, and Stoddart1
Opinion by Justice FitzGerald
Appellees’ daughter Daniella was born prematurely. Her treating physicians included
appellants Enrique N. Ponte, Jr., M.D., and Jorge Fabio Llamas-Soforo, M.D. Despite the
doctors’ efforts, Daniella eventually went blind in her right eye and lost most of the vision in her
left eye. Appellees, acting on Daniella’s behalf, sued Ponte, Llamas, and their employers. The
case was tried to a jury, which made findings in appellees’ favor. The trial judge rendered
judgment against appellants based on the jury’s findings, reduced by settlement credits. Ponte,
1
The Honorable Justice Craig Stoddart succeeded the Honorable Jim Moseley, a member of the original panel. Justice Stoddart has
reviewed the briefs and record before the Court.
Llamas, and their employers have appealed. Because appellees adduced no non-conclusory
evidence of causation, we reverse and render judgment that appellees take nothing.
I. BACKGROUND
A. Facts
The evidence adduced at trial supported the following facts. Appellee Marcela
Bustamante gave birth to Daniella at Del Sol Medical Center in El Paso on May 19, 2005. The
admission note describes Daniella as weighing 600 grams at birth and as having a “23 week 1
day gestational age.” She was admitted to Del Sol’s neonatal intensive care unit. Appellant
Ponte, a neuroneonatologist and an employee of appellant Pediatrix, was medical director of the
neonatal intensive care unit at Del Sol. Ponte was Daniella’s attending physician while she was
in Del Sol’s neonatal ICU.
Daniella suffered from several medical problems related to her premature birth, including
seizures, bleeding and inflammation in the brain, and patent ductus arteriosus, which is a
condition involving the blood vessels near her heart that required surgery to repair. Ponte was
concerned that Daniella would eventually develop a damaging eye condition called retinopathy
of prematurity (ROP). ROP is a condition involving abnormal blood-vessel growth in the retina
that can cause scarring, detachment of the retina, and blindness. Ponte contacted appellant
Llamas, an ophthalmologist, and asked him to examine Daniella. Llamas examined Daniella’s
eyes on July 4, 2005, and he observed no sign of ROP. Llamas’s note from the examination
reflects that there was to be a follow-up examination in four weeks. Llamas examined Daniella
again on August 1. During that examination he determined that Daniella had developed ROP,
and he recommended surgical treatment of the ROP as soon as possible. He performed the
surgery on August 4. That procedure involved using a laser to burn parts of Daniella’s retinas.
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The surgery sacrifices the patient’s peripheral vision to some extent in order to conserve his or
her “central vision.”
At some point after the August 4 surgery, Daniella’s right retina became detached. As a
result, she is blind in her right eye, and eventually the eye may have to be removed. Daniella has
some vision in her left eye, but it is significantly impaired. There was evidence that Daniella
must wear glasses and must hold symbols a few inches from her left eye in order to see them.
There was also evidence that Daniella suffers from other conditions, such as cerebral palsy, and
that she is developmentally delayed to an undefined extent.
B. Procedural history and issues on appeal
In 2008, appellees, as next friends of Daniella, sued appellants and the owners of Del Sol
Medical Center for negligence and gross negligence that allegedly caused Daniella’s vision
impairment. The Del Sol defendants settled with appellees before trial. The remaining claims
were tried to a jury in 2011. The trial judge submitted jury questions regarding the negligence of
Ponte, Llamas, and Del Sol Medical Center; he did not submit any questions regarding any
independent negligence by Pediatrix or by Llamas’s professional association. The jury found
Ponte, Llamas, and Del Sol Medical Center negligent. It apportioned 45% of the responsibility
for Daniella’s injury to Ponte, 45% to Llamas, and 10% to Del Sol. For damages, the jury found
that Daniella would incur future medical expenses of $962,000 after she turned 18 and future
attendant care expenses of $988,000 after she turned 18. The jury also found damages for
Daniella’s pain and mental anguish, disfigurement, and physical impairment totaling $174,000.
Because the verdict was not unanimous, the jury did not answer the question about Ponte’s and
Llamas’s gross negligence.
The parties engaged in motions practice after the verdict was returned. The trial judge
signed a final judgment, a corrected final judgment, and finally a second corrected final
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judgment. In the second corrected final judgment, the judge rendered judgment against
appellants based on the jury verdict, adjusted to account for the settlement credit. In that
judgment, Llamas and his professional association were held jointly and severally liable for
about $873,000, and Ponte and Pediatrix were separately held jointly and severally liable for the
same amount.
II. SUFFICIENCY OF THE EVIDENCE OF PROXIMATE CAUSE
Appellants argue that the evidence is legally insufficient to support the jury’s findings
that Ponte’s and Llamas’s negligence proximately caused any injury to Daniella’s vision.
Appellants preserved their legal-sufficiency challenge by means of a motion for judgment
notwithstanding the verdict attacking the legal sufficiency of the evidence of proximate cause.2
A. Standard of review
When an appellant attacks the legal sufficiency of the evidence to support an adverse
finding on an issue on which it did not have the burden of proof, it must demonstrate that no
evidence supports the finding. If evidence is so weak that it does no more than create a surmise
or suspicion of the matter to be proved, the evidence is no more than a scintilla and, in legal
effect, is no evidence. The evidence is legally sufficient if it is sufficient to enable reasonable
and fair-minded people to reach the verdict under review. In conducting our review, we view the
evidence in the light most favorable to the verdict and indulge every reasonable inference that
would support it. We must credit evidence favorable to the verdict if a reasonable person could,
and we must disregard contrary evidence unless a reasonable person could not.3
2
See Grocers Supply, Inc. v. Cabello, 390 S.W.3d 707, 725 (Tex. App.—Dallas 2012, no pet.) (listing the methods of preserving legal-
sufficiency challenges).
3
Hoss v. Alardin, 338 S.W.3d 635, 640–41 (Tex. App.—Dallas 2011, no pet.).
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B. Applicable law
In a medical-malpractice case, the plaintiff must prove the existence of a legal duty, a
breach of that duty by the defendant, proximate causation, and damages.4 Proximate cause
encompasses the two sub-elements of foreseeability and cause in fact.5 Foreseeability requires
proof that a person of ordinary intelligence should have anticipated the danger created by the
negligent act or omission.6 Cause in fact requires proof (1) that the defendant’s negligence was a
substantial factor in bringing about the injuries and (2) that absent the negligence—i.e., but for
the negligent act or omission—the harm would not have occurred.7 The plaintiff must introduce
evidence of a “reasonable medical probability” or a “reasonable probability” that her injury was
caused by the defendant’s negligence, “meaning simply that it is ‘more likely than not’ that the
ultimate harm or condition” resulted from the defendant’s negligence.8 Proof of a mere
possibility of causation is insufficient.9
If the causation issue is not one within the experience of a lay person, the plaintiff must
ordinarily produce expert testimony of proximate causation.10 No one disputes that expert
testimony of proximate causation was required in this case. An expert cannot opine simply that
the defendant’s negligence caused the injury; the expert must also explain how and why the
negligence caused the injury.11 If no factual basis is offered for the causation opinion, or the
4
See Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 411 S.W.3d 1, 5–6 (Tex. App.—Dallas 2013, no pet.).
5
Id. at 6.
6
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995).
7
Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per curiam).
8
Jelinek v. Casas, 328 S.W.3d 526, 532–33 (Tex. 2010) (quoting Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 399–400 (Tex.
1993)).
9
See Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988) (“[T]he plaintiff must establish a causal connection beyond the point of conjecture;
proof of mere possibilities will not support the submission of an issue to the jury.”); see also Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238, 247 (Tex. 2008) (“‘Perhaps’ and ‘possibly’ indicate conjecture, speculation or mere possibility rather than qualified opinions
based on reasonable medical probability.”).
10
Creech, 411 S.W.3d at 6.
11
Jelinek, 328 S.W.3d at 536.
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factual basis that is offered provides no support, the causation opinion is conclusory, even if it is
not objected to.12 Expert testimony that is conclusory, speculative, or based on assumed facts
contrary to the evidence is legally insufficient to prove the facts testified to.13
C. Review of the evidence
1. Background facts and standard-of-care evidence
The jury heard evidence of the following background facts. Normally, retinal blood
vessels develop flat against the back wall of the retina. But in premature babies, the retina and
its blood vessels are not fully developed at birth. Such babies often develop ROP, which is
characterized by the development of weak, abnormal blood vessels that can actually grow out
into the center cavity of the eye. ROP is referred to as “plus disease” if the abnormal blood
vessels are thick, tortuous, and located in the back of the eye near the optic nerve. Scientists
believe that ROP is caused when the parts of the retina that lack blood vessels produce a growth
factor that triggers the development of the abnormal blood vessels. Evidence was presented that
ROP eventually goes away by itself, and that not all babies who develop ROP need treatment.
However, in some cases ROP can cause scar tissue, which can in turn cause retinal detachment
and vision loss. Thus, in serious cases of ROP, surgical treatment is appropriate. The current
form of treatment is laser surgery, which involves using a laser to burn some of the parts of the
retina that are producing the growth factor. The evidence showed that it was extremely likely
that Daniella would eventually develop ROP. Ponte himself testified that 100% of babies born at
23 weeks develop ROP.
12
See id.
13
Thompson & Knight LLP v. Patriot Exploration, LLC, No. 05-13-00104-CV, 2014 WL 4072120, at *4 (Tex. App.—Dallas Aug. 19,
2014, no pet.); see also Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 840 (Tex. 2010) (per curiam) (concluding that expert opinion was
conclusory and constituted no evidence of causation); Qui Phuoc Ho v. MacArthur Ranch, LLC, 395 S.W.3d 325, 333 (Tex. App.—Dallas 2013,
no pet.) (holding that conclusory statements and opinions are not probative evidence).
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There was evidence that in 2001, the American Academy of Pediatrics and the American
Academy of Ophthalmology promulgated guidelines recommending that physicians start
examining premature babies for ROP at the later of four to six weeks after birth or 31 to 33
weeks gestational age. The 2001 guidelines were not changed until 2006, and Ponte testified that
he followed the 2001 guidelines until 2006 (the year after Daniella’s birth and treatment).
Appellees’ expert witness William Good, M.D., a pediatric ophthalmologist, testified that a study
called the Early Treatment for Retinopathy of Prematurity (ETROP) was conducted prior to
2003. He opined that the publication of the study’s results in 2003 changed the standard of care
very quickly. Good testified that the ETROP study showed that babies should be screened and
treated for ROP earlier than was previously believed.
Good identified three breaches of the standard of care in this case, the first two of which
he ascribed to both Ponte and Llamas and the last of which he ascribed to Llamas alone. First,
he testified that the four-week delay between examinations, from July 4 to August 1, was a
violation of the standard of care because Daniella should have been examined more than once in
the interim. Specifically, Daniella should have been examined on July 11, July 18, and,
depending on the results of the July 18 exam, on or before July 25. Good testified that if
Daniella had been examined on a proper schedule, in reasonable medical probability Daniella
would have received laser treatment on or about July 25. Second, Good testified that the three-
day delay in treatment between August 1 and August 4 violated the standard of care because
Daniella’s ROP should have been treated more quickly than that. Third, he testified that the
manner in which Llamas performed the laser surgery was inadequate.
Appellees also introduced testimony from expert witness and neonatologist Dale Phelps,
M.D. She testified that Ponte breached the standard of care by failing to “work[] out a set of
written guidelines for his staff to communicate with the ophthalmologist.” She indicated that
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this criticism related to Daniella’s follow-up examinations for ROP. She also testified that
Llamas breached the standard of care by scheduling Daniella’s follow-up eye examination four
weeks after the July 4 exam and by failing to describe his observations in his notes from the July
4 exam in a way that could be understood by the staff that he was working with. She testified
that, depending on Llamas’s observations on July 4, a follow-up eye examination should have
been done somewhere from one to three weeks after the July 4 examination.
2. Proximate-cause evidence
Appellees relied on Good and Phelps for evidence of proximate cause. Good first offered
this brief testimony about the effect of the delay in treatment after Llamas’s examination of
Daniella on August 1: “[E]very day that went by [without treatment] put [Daniella] at further risk
of suffering an adverse outcome.” Then, when he criticized the manner in which Llamas
performed the laser surgery, Good testified as follows:
Thirdly, as I have looked at the pictures of the treatment administered by Dr.
Llamas to Daniella, it looks to me like it was inadequate. There are skip lesions.
There are areas where the retinal burns either didn’t take or were not
administered. And this also contributed to, in a proximate way, to her loss of
vision in the right eye and some detrimental loss of vision in the left eye.
...
[T]he treatment pattern is not as confluent as it should have been, even where the
laser burns have taken. But there are also areas called skip areas. These are areas
where there is no treatment at all, and these contribute to an adverse outcome in a
manageable ROP.
(Emphases added.) Later, Good addressed causation more globally and at greater length:
Q. What injury or change in Daniella resulted from the failures to examine
appropriately, timely, and to treat properly and timely, more likely than
not?
A. Well, if you look at the various places where negligence occurred, in an
incremental fashion, each of those contributed to the poor visual outcome
that Daniella experienced. The delay in screening examinations for four
weeks to a probability prevented Dr. Llamas from identifying ROP when
it could have been treated earlier. That would have improved the chance
of a good visual outcome for her. The delay in laser treatment for three
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days also in my opinion incrementally increased the chances of a bad
outcome for her. And then, finally, the inadequate laser treatment I think
really was the coup de grace here, and it basically placed these eyes at
extremely high risk and was causally or proximately responsible for
blindness in the right eye and poor vision in the left eye.
Q. All right. Let me tell you that in Texas, the definition of proximate cause
is that cause which, in a natural and continuous sequence, produces an
event, and without which cause the event would not have occurred. And
there may be more than one proximate cause of an event. Can you accept
that definition?
A. Yes.
Q. Is Daniella’s blindness in your opinion proximately caused by the
negligence that you described for us?
A. Yes, it was.
Q. Can you tell us more likely than not what her vision would be like had
these defendants acted properly?
A. More likely than not, she would have what I would call a sighted life. In
other words, she would be able to use her vision to function in her
environment.
Good also opined that Daniella’s vision would be better than 20/200 if appellants had given her
appropriate treatment. Instead, her right eye is blind and her left eye is roughly 20/1200 or
20/1300.
Phelps, who focused on the four-week gap between the July 4 and the August 1
examinations as the principal negligence committed by Ponte and Llamas, provided the
following causation testimony:
Q. . . . So what more likely than not would have resulted had Dr. Llamas and
Dr. Ponte followed the follow-up examination schedule in the guidelines?
A. He would have seen the ROP as it started up or as it became established
and before it became advanced. If it was looking very threatening, they
might have moved their schedules—exam schedules closer together to
make sure they caught it quickly when it got to the point where it needed
surgery.
Q. Okay.
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A. That was—that would be my expectation.
Q. Do you think more likely than not Daniella would have functional vision
had they done it correctly?
A. Yes.
Shortly thereafter, appellees’ counsel again asked Phelps, “Would Daniella Bustamante more
likely than not in your opinion have functional vision had they done it correctly—these doctors
done this correctly?” Phelps answered, “Yes.”
a. Ponte
After reviewing the testimony of appellees’ causation experts, Good and Phelps, we
conclude that appellees adduced legally insufficient evidence of cause in fact against Ponte.
Good did not testify that Ponte’s negligent acts and omissions, individually or
collectively, were more likely than not a but-for cause of Daniella’s injuries. Rather, he testified
that each instance of negligence by both doctors contributed “in an incremental fashion” to
Daniella’s poor visual outcome. Ponte’s first act of negligence was failing to ensure that
Daniella received additional eye examinations between July 4 and August 1. As to that
negligence, Good testified as follows: “The delay in screening examinations for four weeks to a
probability prevented Dr. Llamas from identifying ROP when it could have been treated earlier.
That would have improved the chance of a good visual outcome for her.” This testimony is
insufficient to support a finding of but-for causation because it does not show that the lack of
interim examinations was, more likely than not, a but-for cause of Daniella’s injuries.
Unquantified evidence that a different course of action would have created a lower risk of harm
is legally insufficient to show but-for causation.14
14
See Providence Health Ctr. v. Dowell, 262 S.W.3d 324, 328 (Tex. 2008) (holding that testimony that decedent “would have improved” if
he had been hospitalized and that he would have been at “lower risk” of suicide upon discharge was no evidence of causation).
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Good also failed to establish but-for causation as to Ponte’s other act of negligence,
permitting a three-day delay in the performance of the laser surgery after the August 1
examination. According to Good, this delay “incrementally increased the chances of a bad
outcome for” Daniella. Again, his testimony that swifter surgery would have had some
unquantified positive effect on Daniella’s chance of a better outcome is legally insufficient to
show but-for causation.15
Good gave additional causation testimony after he added to the equation Llamas’s
negligence in performing the laser surgery. Good described the inadequate laser surgery as “the
coup de grace” and testified that the surgery “was causally or proximately responsible for
blindness in the right eye and poor vision in the left eye.” Then appellees’ counsel gave Good a
definition of proximate cause that included the cause-in-fact requirement, and he asked Good
whether all of the negligence he had described, committed by both Ponte and Llamas,
proximately caused Daniella’s injuries: “Is Daniella’s blindness in your opinion proximately
caused by the negligence that you described for us?” (Emphasis added.) Good answered, “Yes,
it was.” Then counsel asked, “Can you tell us more likely than not what her vision would be like
had these defendants acted properly?” (Emphasis added.) Good answered, “More likely than
not, she would have what I would call a sighted life. In other words, she would be able to use
her vision to function in her environment.” When Good expressed a causation opinion in terms
of but-for causation, he predicated his opinion on the combined negligence of both Ponte and
Llamas as to all three events—the negligent examination schedule, the three-day delay in the
performance of the laser surgery, and Llamas’s negligent performance of the laser surgery. But
Ponte was not involved in the performance of the laser surgery, so he was not responsible for the
consequences of any negligence that necessarily included negligent performance of the laser
15
See id.
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surgery. Good never said that Ponte’s negligence alone was more likely than not a but-for cause
of Daniella’s injuries. As emphasized above, Goode declined to opine that the four-week delay
in examining Daniella or the three-day delay in performing the surgery, either separately or
considered together, was more likely than not a but-for cause of Daniella’s injuries. We
conclude that Good’s testimony constitutes no evidence that Ponte’s negligence was a but-for
cause of the injuries to Daniella’s eyes.
This leaves the causation testimony of Phelps, who identified Ponte’s negligence as
failing to “work[] out a set of written guidelines for his staff to communicate with the
ophthalmologist.” She later explained that her criticism of Ponte related to Daniella’s “follow-up
for ROP.” With respect to causation, Phelps testified that if Llamas and Ponte had used the
follow-up schedule in the guidelines, they might have moved the exams closer together to make
sure they caught Daniella’s ROP quickly. And Phelps testified that, more likely than not,
Daniella would have functional vision if Ponte and Llamas had “done it correctly.”
We conclude that Phelps’s testimony about the causal connection between Ponte’s
negligence and Daniella’s injuries was conclusory and therefore constituted no evidence of but-
for causation against Ponte.16 The record contains no factual explanation to substantiate Phelps’s
opinion that earlier examinations and earlier laser treatment more likely than not would have
prevented Daniella’s injuries. Phelps did testify about the results of the ETROP study, and she
testified that favorable outcomes were more common among babies who received early laser
treatment as compared to babies who received laser treatment later. She testified that bad results
occurred after conventionally timed laser treatment about 14% to 16% of the time, and that
babies in the early treatment group suffered bad results only about 9% of the time. But she did
16
See Jelinek, 328 S.W.3d at 536 (“The expert must also, to a reasonable degree of medical probability, explain how and why the
negligence caused the injury.”).
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not testify that the ETROP study showed that earlier treatment of Daniella probably would have
prevented her injuries in her particular case. In fact, Good specifically denied that the ETROP
study could be used to determine whether a delay in treatment actually affected a baby’s vision.
When the evidence shows that a particular treatment helps some patients and not others, the
expert must explain the facts justifying a conclusion that a particular patient would have been
helped by the treatment.17 In this case, there was no factual substantiation or explanation to
support Phelps’s testimony that earlier treatment would have improved Daniella’s outcome. Her
causation testimony was conclusory and constituted no evidence of causation against Ponte.
b. Llamas
Next, we examine the evidence of cause in fact as to Llamas. We hold that all of the
evidence that Llamas’s negligence caused Daniella’s injuries was conclusory, and it therefore
constituted no evidence of proximate cause.
We have already held that Phelps’s causation testimony was conclusory and nonprobative
as to Ponte. Phelps did not offer any different causation testimony as to Llamas; indeed, she
lumped Ponte and Llamas together when she opined that Daniella would have functional vision
if Ponte and Llamas had not been negligent with respect to Daniella’s follow-up exam schedule.
Accordingly, we conclude that Phelps’s causation testimony was conclusory and constituted no
evidence of but-for causation against Llamas.
This leaves the testimony of Good, who identified Llamas’s three negligent acts as failing
to examine Daniella between July 4 and August 1, failing to perform the laser surgery promptly
enough after the August 1 examination, and negligently performing the laser surgery itself. As
discussed above, Good did not testify that the first two negligent acts were, more likely than not,
a but-for cause of the injuries to Daniella’s vision. He testified only that those acts increased the
17
Archer v. Warren, 118 S.W.3d 779, 787–88 (Tex. App.—Amarillo 2003, no pet.).
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risk of harm to some unknown and unquantified degree. This is no evidence of but-for causation
against Llamas.18
We next consider Good’s testimony regarding Llamas’s third act of negligence, his
negligent performance of the laser surgery. When Good considered the surgery by itself, he did
not opine clearly that the surgery alone was probably a but-for cause of Daniella’s injuries. He
testified that the inadequate surgery “contributed to, in a proximate way, to her loss of vision in
the right eye and some detrimental loss of vision in the left eye.” He also testified that the flaws
in the surgery “contribute[d] to an adverse outcome in a manageable ROP.” But Good did not
opine that the inadequate surgery alone was, more likely than not, a but-for cause of Daniella’s
vision loss. His opinions that the negligence “contributed to” the vision loss are legally
insufficient evidence of proximate cause.19
But Good did testify that all three negligent acts by Llamas collectively were, more likely
than not, a but-for cause of Daniella’s injuries. After testifying that Llamas’s first two negligent
acts increased Daniella’s risk, Good testified that Llamas’s negligent performance of the laser
surgery “basically placed these eyes at extremely high risk and was causally or proximately
responsible for blindness in the right eye and poor vision in the left eye.” (Emphasis added.)
Then appellees’ lawyer defined proximate cause for Good, and Good testified that Daniella’s
extremely limited vision was proximately caused by “the negligence” that Good had previously
described—meaning, in context, all the negligence by both appellants. Good also testified that if
appellants had acted properly, “[m]ore likely than not, [Daniella] would have . . . a sighted life.
In other words, she would be able to use her vision to function in her environment.” Good’s
18
See Providence Health Ctr., 262 S.W.3d at 328.
19
See Christus St. Mary Hosp. v. O’Banion, 227 S.W.3d 868, 875 (Tex. App.—Beaumont 2007, pet. denied) (testimony that event
“contributed to” patient’s death was no evidence of proximate cause); Sisters of St. Joseph of Tex., Inc. v. Cheek, 61 S.W.3d 32, 36–37 (Tex.
App.—Amarillo 2001, pet. denied) (testimony that negligence “caused or contributed to” patient’s death was no evidence of proximate cause).
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testimony, taken at face value, was sufficient to show that Llamas’s negligence, considered
collectively, was a but-for cause of Daniella’s injuries.
We next consider Llamas’s argument that Good’s cause-in-fact testimony against Llamas
was conclusory. The question is whether Good explained how and why Llamas’s three acts of
negligence caused the injury.20 Good testified that the delays in treatment increased the
likelihood of injury to an undefined extent and, when combined with the negligent surgery,
became a but-for cause of Daniella’s injuries. But he did not explain how or why the delays in
treatment contributed to Daniella’s injuries or worsened her chances of a better outcome. The
only basis for Good’s opinion about the effect of the delays in treatment that we can identify in
the testimony is the ETROP study, which he testified showed that earlier treatment of ROP led to
better outcomes. But Good did not explain how the ETROP study showed that Daniella’s
outcome in particular would have been affected by earlier treatment. He also acknowledged that
the ETROP study was not designed “to determine whether a delay in screening or a delay in
treatment actually affected a baby’s vision,” and that it would be “an incorrect use of that study”
to “claim that it was designed to detect or to look at the effect of delay.” So Good’s testimony
about the causal connection between the delays in examination and treatment in this case was
conclusory—it was not supported by facts and explanations as to how and why the delays caused
Daniella’s injuries in this case.
This leaves Good’s testimony that Llamas’s negligent performance of the laser surgery
was causally connected to Daniella’s injuries. Good testified that laser therapy has an overall
success rate of over 75%. Good criticized Llamas’s surgery because, Good claimed, he could
see from photographs that there were areas in Daniella’s eyes where Llamas failed to make the
20
See Jelinek, 328 S.W.3d at 536; see also Qui Phuoc Ho, 395 S.W.3d at 333 (“[A]n expert’s simple ipse dixit is insufficient to establish a
matter . . . .”).
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laser burns sufficiently close together, and there were other places, which he called “skip
lesions” or “skip areas,” where the laser burns “didn’t take” or where Llamas applied no laser
treatment at all. Good testified that in a proper laser surgery, the burn areas should be confluent
or nearly confluent, meaning no more than one burn width apart. He also testified that leaving
skip areas can allow the disease to progress further.
On the other hand, Good also testified that there was a significant chance that Daniella
would have suffered the same bad outcome even with proper treatment. On cross-examination,
Good agreed that 89 of the babies involved in the ETROP study, or about 22%,21 suffered retinal
detachment despite receiving early surgical treatment. Good admitted he did not review the
ETROP results to see how close together the laser burns were in the 89 babies who suffered
retinal detachments; rather, he assumed that the laser therapy was appropriate. He did not
explain why he concluded Daniella would not have been among the 22% of babies who suffered
blindness even after receiving proper laser treatment. Good also testified that there are several
factors that make a bad outcome more likely even if proper treatment is given, and that Daniella
had some of those factors, including “plus disease,” extremely low birth weight, and gestational
age (apparently meaning Daniella’s extreme prematurity). He did not explain why or how
different performance of the laser surgery would have overcome Daniella’s preexisting adverse
risk factors.
The key legal principle is stated in the Jelinek case: “[W]hen the facts support several
possible conclusions, only some of which establish that the defendant’s negligence caused the
plaintiff’s injury, the expert must explain to the fact finder why those conclusions are superior
based on verifiable medical evidence, not simply the expert’s opinion.”22 In this case, the
21
Llamas testified without contradiction that about 400 babies were involved in the ETROP study.
22
328 S.W.3d at 536.
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evidence showed that there was a significant chance that even a properly performed surgery
would not have changed Daniella’s outcome, but Good testified that Daniella probably would
have had a better outcome if Llamas had performed the surgery properly. Thus, it was
incumbent on Good or some other expert to explain why his conclusion that Daniella would have
had a better outcome was medically preferable to the inference that Daniella would have suffered
the same bad outcome even with a better-performed surgery. After reviewing the record, we
conclude that Good’s causation testimony regarding the negligent surgery by Llamas was
conclusory because he did not explain how and why performance of the surgery in a different
manner probably would have resulted in a different outcome for Daniella.
Appellees rely heavily on the following testimony by Good in their attempt to show that
Good sufficiently explained the basis for his causation opinion:
[A]s I have looked at the pictures of the treatment administered by Dr. Llamas to
Daniella, it looks to me like it was inadequate. There are skip lesions. There are
areas where the retinal burns eithers didn’t take or were not administered. And
this also contributed to, in a proximate way, to her loss of vision in the right eye
and some detrimental loss of vision in the left eye.
...
When a laser burn takes, it makes a white mark. And where there is no laser
treatment or the laser burn does not take, there is no mark.
And so there are—the treatment pattern is not as confluent as it should have been,
even where the laser burns have taken. But there are also areas called skip areas.
These are areas where there is no treatment at all, and these contribute to an
adverse outcome in a manageable ROP.
...
We think the physiology is that the cells that exist outside of where the retina is
vascularized, meaning the area where there are no blood vessels, we think that
these cells after a while begin to send a signal. The signal is a protein, which is a
growth factor. It is called vascular endothelial growth factor. And this signal
incites the development of abnormal, more fragile blood vessels to grow.
So literally what happens is, blood vessels begin to grow instead of normally
along—flat against the back wall of the retina, they start to grow out into the
center cavity of the eye.
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Eventually, these blood vessels will go away, but in the process they bring in cells
that are precursors to the formation of scar tissue. And so the retina can detach,
and it can detach partially or it can detach completely.
And then, when asked whether skip areas “keep the disease progressing instead of stopping,”
Good answered, “Well, it can, yes.” In his testimony, Good gave a general explanation of the
physiology underlying ROP, and in Phelps’s testimony, she explained that using a laser to burn
part of the retina that lacks blood vessels prevents the release of the growth factors that cause
ROP. So the record contains evidence explaining how laser treatment effectively treats ROP
when it does effectively treat ROP. But no one explained why laser treatment failed roughly
22% of the time in the ETROP study, and no one explained why proper laser treatment in
Daniella’s specific case probably would have resulted in a better outcome, despite Daniella’s
specific risk factors that made her prognosis worse than it otherwise would have been.
This case is similar to the Jelinek case, in which a hospital negligently failed to treat its
patient with antibiotics as prescribed, and the patient suffered a significant amount of pain
thereafter.23 The patient later died, and her survivors sued the hospital for negligence.24 The
plaintiffs won a judgment based on a jury verdict, but the supreme court reversed because the
plaintiffs’ expert causation testimony was conclusory. The plaintiffs’ expert testified that the
patient’s pain was probably caused by the failure to give her the prescribed antibiotics, but he
acknowledged that the pain could have been caused by two other factors that were present and
that the antibiotics would not have treated.25 Although the expert testified that the hospital’s
negligence probably caused increased pain and suffering to the patient, he did not explain why
this possible cause was more likely than the other possible causes that would not have been
23
328 S.W.3d at 530.
24
Id.
25
Id. at 535–36.
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affected by the hospital’s negligence.26 The supreme court held that the expert’s causation
testimony was conclusory and constituted no evidence of causation.27 In the instant case the
evidence showed that there was a significant chance that Daniella would have suffered the same
injuries even if Llamas had performed the surgery in the manner Good said he should have. The
evidence also showed that Daniella suffered from specific risk factors that made a bad outcome
in her case more likely. But Good did not explain why he believed that a different manner of
performing the surgery probably would have prevented Daniella’s injuries in her particular case,
despite the possibility of a bad outcome even with proper treatment and despite Daniella’s
particular risk factors that increased the likelihood of a bad outcome. Accordingly, his causation
testimony was conclusory and constituted no evidence of but-for causation.
D. Conclusion
Most of appellees’ evidence of causation showed only that a different plan of treatment
could have resulted in a different outcome for Daniella, which does not suffice to show but-for
causation. To the limited extent appellees’ experts purported to establish but-for causation, their
testimony lacked factual explanation and support, was conclusory, and was non-probative.
Accordingly, appellees adduced legally insufficient evidence of proximate cause against
appellees Ponte and Llamas. The trial court erred by failing to grant appellants’ motion for a
take-nothing judgment notwithstanding the verdict.
26
Id. at 536.
27
Id. at 538.
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III. DISPOSITION
For the foregoing reasons, we reverse the judgment of the trial court and we render
judgment that appellees take nothing from appellants.
121394F.P05
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
O’Neill, J., concurs without opinion.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ENRIQUE N. PONTE, JR. M.D., On Appeal from the 101st Judicial District
PEDIATRIX MEDICAL SERVICES, INC., Court, Dallas County, Texas
JORGE FABIO LLAMAS-SOFORO, M.D., Trial Court Cause No. 08-08056.
AND JORGE FABIO LLAMAS-SOFORO, Opinion delivered by Justice FitzGerald.
M.D., P.A. D/B/A EL PASO EYE CENTER Justices O’Neill and Stoddart participating.
Appellants
No. 05-12-01394-CV V.
MARCELA BUSTAMANTE AND JOSE
BUSTAMANTE, AS NEXT FRIENDS OF
DANIELLA BUSTAMANTE, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that appellees Marcela Bustamante and Joe
Bustamante, as Next Friends of Daniella Bustamante, take nothing from appellants Enrique N.
Ponte, Jr. M.D., Pediatrix Medical Services, Inc., Jorge Fabio Llamas-Soforo, M.D., and Jorge
Fabio Llamas-Soforo, M.D., P.A. D/B/A El Paso Eye Center.
It is ORDERED that appellants Enrique N. Ponte, Jr. M.D., Pediatrix Medical Services,
Inc., Jorge Fabio Llamas-Soforo, M.D., and Jorge Fabio Llamas-Soforo, M.D., P.A. D/B/A El
Paso Eye Center recover their costs of this appeal from appellees Marcela Bustamante and Joe
Bustamante, as Next Friends of Daniella Bustamante. The District Clerk of Dallas County is
directed to release the full amount of the cash deposit in lieu of bond to suspend enforcement of
judgment to appellants Jorge Fabio Llamas-Soforo, M.D., and Jorge Fabio Llamas-Soforo, M.D.,
P.A. D/B/A El Paso Eye Center.
Judgment entered December 31, 2014.
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