Annie Dorsey, Individually and as Next Friend of Ezra Dorsey v. Christus Hospital - St. Mary and Leslie McDonald Lovelace ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-15-00141-CV
________________
ANNIE DORSEY, INDIVIDUALLY AND AS NEXT FRIEND
OF EZRA DORSEY, Appellant
V.
CHRISTUS HOSPITAL – ST. MARY AND
LESLIE McDONALD LOVELACE,
Appellees
__________________________________________________________________
On Appeal from the 136th District Court
Jefferson County, Texas
Trial Cause No. D-193,144-B
__________________________________________________________________
MEMORANDUM OPINION
Annie Dorsey appeals a no-evidence summary judgment granted in favor of
appellees, Christus Hospital – St. Mary (“Christus”) and Leslie McDonald
Lovelace, with respect to “neurological injury and damages associated with any
neurological injury” in Dorsey’s health care liability lawsuit. Dorsey raises three
issues for our consideration. We affirm the trial court’s summary judgment order.
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BACKGROUND
Annie Dorsey, individually and as next friend of Ezra Dorsey, sued Christus
and Lovelace for alleged medical negligence. According to Dorsey’s petition, Ezra
and her twin brother were born prematurely at thirty-one weeks of gestation via an
emergency cesarean section on August 14, 2010. Dorsey alleged that after Ezra
was born, she was admitted to the neonatal intensive care unit at Christus “for
specialized medical services related to her pre-term and prenatal problems.”
According to Dorsey, on September 13, 2010, Ezra “suffered a skull fracture after
she was dropped or pulled on [sic] the floor by RN Leslie Lovelace, a Registered
Nurse employee of Christus Hospital – St. Mary in Neonatal ICU that was
responsible for taking care of Ezra.” Dorsey asserted that Ezra was “crying and
experienced significant trauma[,]” and a CT scan revealed that Ezra had a right
linear occipital and parietal skull fracture. Dorsey contended that Lovelace was
acting within the course and scope of her employment with Christus when Ezra
suffered the skull fracture.
According to Dorsey, Christus transferred Ezra to UTMB hospital in
Galveston “for an expert evaluation by a neurosurgeon and a neurologist based
upon the request of Ezra’s family.” Dorsey asserted that neurosurgeon Dr. Aaron
Mohanty evaluated Ezra a few months after her fall, and he explained that the fall
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caused Ezra’s skull fracture, the skull fracture caused “significant trauma” to Ezra,
and the skull fracture had not yet healed. Dorsey further contended that in October
of 2011, pediatric neurosurgeon Dr. Timothy George of Dell Children’s Medical
Center of Central Texas evaluated Ezra when she was approximately fourteen
months old and issued an expert report, in which he attributed the skull fracture to
Ezra’s fall, noted that Ezra was hyperactive, and recommended a follow-up visit
with a developmental pediatrician.
Dorsey asserted that J. Walter Bordages, Ph.D., performed developmental
tests on Ezra and prepared a neuropsychological evaluation report, in which he
opined that Ezra’s evaluation “supported his diagnoses of a neurocognitive
disorder due to traumatic brain injury with behavioral disturbance as a result of the
skull fracture[.]” Dorsey contended that Bordages’s conclusions were confirmed
by Dr. Jerry Tomasovic, who, according to Dorsey, testified by deposition that the
skull fracture resulted in a traumatic brain injury to Ezra, and that Christus and
Lovelace breached the applicable standard of care, based upon a reasonable
medical probability.
Christus and Lovelace filed a hybrid motion for summary judgment as to
neurological injury and damages associated with any neurological injury.
According to Christus and Lovelace’s no-evidence motion, Tomasovic, who is
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Dorsey’s “only retained expert qualified to opine as to causation[,]” had “testified
that he could not opine within a reasonable degree of medical probability that Ezra
Dorsey suffered any underlying brain injury as a result of Defendants’ actions[,]”
leaving Dorsey “unable to provide any reliable expert testimony that Ezra Dorsey’s
neurological injuries, if any, were causally related to Defendants’ alleged
negligence[.]” In addition, Christus and Lovelace contended that because Dorsey is
unable to provide evidence of causation, Dorsey also cannot prove that any future
lost wages or medical costs are attributable to the alleged negligence of Christus
and Lovelace. Christus and Lovelace state in their motion for summary judgment
that they filed a motion to exclude any opinion from Tomasovic as to whether the
fall caused Ezra’s neurological injuries.
Christus and Lovelace attached as summary judgment evidence a copy of
Dorsey’s original petition, second amended original opinion, and supplemental
expert designation; Christus and Lovelace’s motion to exclude Tomasovic’s
testimony on neurological injury; the deposition testimony of Tomasovic; excerpts
from Ezra’s medical records; the deposition of Bordages; and a “life care plan and
report” by Valerie Purcell and Al Davies, M.D. Dorsey’s supplemental expert
designation stated that Dorsey expected Tomasovic to testify regarding
how dropping Baby Ezra Dorsey on the floor high enough to sustain a
skull fracture places the infant at risk for subsequent neurologic
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sequelae and represents a breach of safety outside of the standard of
care expected for an infant in a neonatal nursery, and why a longer
timeframe is necessary for additional neurodiagnostic and
neurodevelopmental assessments and future medical expenses to
confirm the potential for complications from the closed head injury[.]
Dorsey did not designate any medical doctor other than Tomasovic as a retained
expert regarding the causal relationship between the fall and any neurological
injury or deficits Ezra suffered.
When asked during the deposition about what his role is in the case,
Tomasovic explained as follows: “[A] developmental pediatrician had identified
some delays in Ezra Dorsey’s development, motor/language. And that this
prompted connecting that to the injury that occurred after the child’s . . . birth. And
I was asked, [c]an you look at the records to see if you can connect the dots?”
When asked whether his report states that he cannot connect the dots at this point,
but it may be too early to tell for certain, Tomasovic testified, “That is accurate.”
According to Tomasovic, most neurologists believe that traumatic brain injury
cannot be diagnosed absent either a structural abnormality of the brain or
neurologic sequelae,1 such as altered mental status or seizures, at the time of the
injury.
1
“Sequelae” is the plural of “sequela,” which means “[a] condition following
as a consequence of a disease.” Stedman’s Medical Dictionary for the Health
Professions and Nursing, 1525 (7th ed. 2012).
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Tomasovic explained that Ezra suffered a nondisplaced skull fracture,
meaning that “[t]he edges of the skull fracture were juxtaposed; they were next to
each other. One side was not compressed and pushed into the lining of the brain or
the brain itself.” According to Tomasovic, displaced skull fractures are more likely
to cause traumatic brain injury than nondisplaced skull fractures. Tomasovic
testified that when he used the term “closed head injury” in his report, he was
referring only to the skull fracture, and he explained that he had not concluded that
any traumatic brain injury occurred as a result of Ezra’s closed head injury. Later,
during cross-examination, Tomasovic defined “traumatic brain injury” as “an
injury to the skin, scalp, skull, and brain that occurs from an excessive blow to that
region and can generate a variety of abnormalities out of that experience[,]” and he
testified that an impact that is hard enough to fracture the skull is a traumatic brain
injury, and he explained that the fall was “significant enough to potentially cause
neurologic damage.”
Tomasovic explained that in Ezra’s case, he can neither rule out traumatic
brain injury nor determine that such an injury occurred. Tomasovic testified that
according to his training, if Ezra has global abnormalities, these deficits are likely
related to her prematurity, very low birth weight, and opiate exposure. Tomasovic
testified that Ezra has multiple risk factors for developmental delay. According to
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Tomasovic, intrauterine growth retardation and low birth weight are significant
risk factors for developmental delay, and those factors are, statistically speaking,
the most likely cause of Ezra’s developmental delay. Tomasovic agreed that
placental insufficiency could have been the only cause of any developmental delay.
Tomasovic testified that within reasonable medical probability, there is more
than a 50 percent probability that the fall caused Ezra’s skull fracture, but he
explained that he cannot say within a reasonable medical probability that the fall
caused any brain injury to Ezra. Tomasovic explained during the deposition that
after he reviews Bordages’ report, he might find evidence therein to support a
claim of long-term neurological damage. However, after the deposition,
Tomasovic filed a supplemental expert report, in which he stated, “I reviewed the
neuropsychological evaluation of Ezra Dorsey by J. Walter Bordages, Ph.D., a
clinical pediatric neuropsychologist that is not a physician but nonetheless
qualified to give an expert opinion on baby Ezra Dorsey’s long term neurological
damages.” Tomasovic did not adopt Bordages’s opinion, but instead stated in his
supplemental report, “I am deferring to the expert opinion of Dr. Bordages on the
issue of long term neurological damages[.]” The trial court signed an order
granting Christus and Lovelace’s no-evidence motion for summary judgment as to
neurological injury and damages associated with any neurological injury.
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ANALYSIS
We review summary judgment orders de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). We review the trial court’s granting of a
no-evidence motion for summary judgment under the standards set forth in Rule
166a(i). See Tex. R. Civ. P. 166a(i). To defeat a no-evidence summary judgment
motion, the non-movant must produce summary judgment evidence that raises a
genuine issue of material fact regarding each element challenged by the movant.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). The non-movant
raises a genuine issue of material fact by producing more than a scintilla of
evidence establishing the challenged element’s existence. Id.; Forbes Inc. v.
Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla
exists when the evidence is such that reasonable and fair-minded people can differ
in their conclusions. Ridgway, 135 S.W.3d at 601. If “‘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, the evidence is no more than a scintilla and, in legal
effect, is no evidence.’” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,
63 (Tex. 1983)). In determining whether the non-movant has produced more than a
scintilla of evidence, we view the evidence in the light most favorable to the non-
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movant and disregard all contrary evidence and inferences. Id.; King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
ISSUE ONE
In her first issue, Dorsey argues that Christus and Lovelace “filed an
improper summary judgment motion on unpled affirmative defenses.” Christus and
Lovelace filed a hybrid motion for summary judgment, and in the no-evidence
portion of the motion, Christus and Lovelace contended that Dorsey had not
produced expert testimony on the issue of causation and was unable to do so. The
trial court granted the no-evidence motion for summary judgment. Christus and
Lovelace’s no-evidence motion for summary judgment was not based on an
unpleaded affirmative defense; rather, it simply asserted that Dorsey was unable to
provide any evidence on causation, which is an essential element of her claims. See
generally Tex. R. Civ. P. 166a(i) (“[A] party may move for summary judgment on
the ground that there is no evidence of one or more essential elements of a claim or
defense on which an adverse party would have the burden of proof at trial.”); Tex.
R. Civ. P. 94 (Lack of proximate cause is not one of the defenses which Rule 94
provides must be affirmatively set forth.). We overrule issue one.
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ISSUE TWO
In her second issue, Dorsey contends the trial court erred by granting the no-
evidence summary judgment because “the trial court was barred by rules of law or
evidence from giving weight to any of the evidence offered to prove a vital fact.”
As explained above in our discussion of issue one, the motion for summary
judgment was a no-evidence motion, in which Christus and Lovelace argued that
Dorsey, who had the burden to prove causation, was unable to do so. At issue was
whether Dorsey could produce more than a scintilla of evidence of causation, not
the ability of Christus and Lovelace to prove an affirmative defense. See generally
Tex. R. Civ. P. 94, 166a(i). We overrule issue two.
ISSUE THREE
In her third issue, Dorsey argues that the trial court erred by granting the no-
evidence motion for summary judgment because genuine issues of material fact
exist regarding the proximate cause of Ezra’s neurological injury. Specifically,
Dorsey argues that Bordages is qualified to testify as an expert witness on the issue
of causation. In support of her argument, Dorsey cites Ponder v. Texarkana
Memorial Hospital, Inc., 840 S.W.2d 476, 477-78 (Tex. App.—Houston [14th
Dist.] 1991, writ denied). In Ponder, the Fourteenth Court found that an expert,
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though not a medical doctor, should be allowed to testify to causation. Ponder, 840
S.W.2d at 478.
To recover under the Medical Liability Act, the defendant health care
provider’s “act or omission complained of must proximately cause the injury to the
claimant.” Tex. West Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 180 (Tex.
2012); see also Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (West Supp.
2014).
[I]n a suit involving a health care liability claim against a physician or
health care provider, a person may qualify as an expert witness on the
issue of the causal relationship between the alleged departure and
accepted standards of care and the injury, harm, or damages claimed
only if the person is a physician[.]
Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a) (West 2011). Health care
institutions and registered nurses are included within the Medical Liability Act’s
definition of “health care provider.” Id. § 74.001(a)(12)(A)(i), (vii) (West Supp.
2014). Therefore, to qualify as an expert witness regarding the relationship
between the alleged negligence of Christus and Lovelace and the injury, harm, or
damages Ezra suffered, the expert witness must be a physician. See id. §§ 74.001,
74.403(a). Ponder was decided prior to the enactment of section 74.403(a).
Because Bordages is not a medical doctor, the trial court was statutorily prohibited
from considering Bordages’s opinions regarding causation. See id.
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As discussed above, Tomasovic was Dorsey’s only expert witness
designated to testify regarding causation, and Tomasovic testified at his deposition
that he was unable to “connect the dots” between the skull fracture and Ezra’s
alleged neurological injury or deficits. Tomasovic indicated that he had not
concluded that any traumatic brain injury occurred as a result of Ezra’s skull
fracture. Additionally, in his supplemental expert report, Tomasovic did not adopt
Bordages’s opinion, nor did he clarify or reevaluate his own testimony in light of
Bordages’s findings; instead, Tomasovic simply stated that he deferred to
Bordages’s opinion. Tomasovic’s testimony that a fall that was severe enough to
cause a skull fracture was “significant enough to potentially cause neurologic
damage” does no more than create a surmise or suspicion that the fall caused
Ezra’s alleged neurological injuries; therefore, it does not amount to more than a
scintilla of evidence of causation. See Ridgway, 135 S.W.3d at 601. For all of these
reasons, we overrule issue three and affirm the trial court’s summary judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on July 27, 2015
Opinion Delivered October 15, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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