christus-health-southeast-texas-dba-st-elizabeth-hospital-v-rosalind ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-07-074 CV ______________________

CHRISTUS HEALTH SOUTHEAST TEXAS D/B/A ST. ELIZABETH HOSPITAL, Appellant

V.

ROSALIND HALL, JAMES WEISNER, AND GWENDOLYN WASHINGTON, AS REPRESENTATIVES OF THE ESTATE OF ESTHER JOLIVETTE, Appellees

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On Appeal from the 136th District Court Jefferson County, Texas Trial Cause No. D-173,522

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    MEMORANDUM OPINION

A jury found Christus Health Southeast Texas, doing business as St. Elizabeth Hospital, liable for medical negligence and awarded damages for medical bills and past pain and mental anguish. Christus appeals the trial court's judgment. Because the evidence of proximate cause is insufficient, the judgment is reversed and the case is remanded for a new trial.

Background

Esther Jolivette, a patient at Christus, was scheduled to receive a cardiac pacemaker. There is evidence in the record that Jolivette's daughter, Rosalind Hall, explained to the hospital staff at each shift that Jolivette was confused and disoriented at times. In addition, hospital records indicated Jolivette was confused and had dementia.

Dr. Paris Bransford implanted a pacemaker on November 4, 2003. After completing the procedure, Dr. Bransford stepped out of the catheterization lab to discuss the results with Hall. A nurse testified Jolivette "flipped very suddenly" off the procedure table and fell to the floor. Dr. Bransford ordered tests to determine whether Jolivette had suffered any injuries in addition to the bruises to her face, swelling around her eye, and the swelling in her arm. Tests did not reveal any further injuries. The pacemaker manufacturer's representative tested Jolivette's pacemaker approximately one hour after the fall and found the pacemaker was functioning properly.

Jolivette was transferred to a hospital room shortly after twelve noon on November 4, 2003. The written instructions to the patient stated that the patient is to "keep [her] arm by [her] side for 48 hours" and "[n]o reaching, pulling, or stretching with that arm." Dr. Bransford ordered an immobilizer for Jolivette's arm. The nurses' notes state that at 1:15 p.m. on November 4, Jolivette was "found between rails attempting to amb[ulate] to bathroom." At 4:15 p.m., the nurses' notes indicate Jolivette was found "sitting up in bed one leg between bedrails." Nurses' notes reflect that Jolivette was "noncompliant persistently moves arm in direction she wants" and that she was "not able to comprehend fully."

The attending nurses at Christus informed Dr. Bransford of Jolivette's continued movement. At 4:16 p.m. on November 4, Dr. Bransford instructed the nurses to administer Ativan in an attempt to calm Jolivette and reduce her movement; this was in addition to the immobilizer. The floor nurses administered the medication at approximately 5:00 p.m. Another order for Ativan was given at 6:30 p.m. At 9:50 p.m., the nurses administered Ativan again. A few minutes after midnight, on November 5, a Dr. Johnson authorized the use of "soft bil wrist restraints," if needed, and to administer additional Ativan, if needed. The initial surgery report of Dr. Bransford appeared to attribute the dislodgement of the pacemaker leads to the fall from the catheterization table. Subsequently, during his July 3, 2006, deposition, Dr. Bransford testified that, based on an x-ray and on the pacemaker representative's test conducted approximately one hour after the November 4 surgery, Jolivette's arm movement caused the dislodgement of the leads. The dislodgement occurred sometime between 1:48 p.m. on November 4, 2003, and 10:30 a.m. on November 5, 2003, (the day after the implantation procedure). On November 5, 2003, at approximately 10:30 a.m., a test found the lead had dislodged. The next day, Dr. Bransford reimplanted the pacemaker leads in Jolivette's heart. Jolivette was discharged from the hospital on November 7, 2003, and died some months later. ⁽¹⁾

The Statute of Limitations

In issue one, Christus argues the statute of limitations bars the medical negligence finding by the jury. The jury found the negligence of Christus, its nurses, or employees proximately caused Jolivette's pacemaker leads to become displaced after the procedure in the catheterization lab. Christus asserts that the limitations period began to run no later than November 7, 2003, (the date Jolivette was last seen and discharged from Christus), and that limitations expired no later than November 7, 2005.

In her original petition, Hall pled specifically, in addition to more general allegations, that Christus was negligent in failing to prevent Jolivette from falling off the procedure table in the catheterization lab, and that the fall caused the pacemaker leads to be dislodged. On September 18, 2006, Hall filed a second amended original petition, alleging that the "implantation of the pacemaker had been damaged either by the fall [on November 4] or the movement of her arms from lack of restraint[.]" Hall further pled in the second amended petition that "on November 6, 2003, Mrs. Jolivette underwent a second pacemaker surgery made necessary as a result of the fall off the procedure table after the first pacemaker surgery, with further insufficient preventions."

Christus argues the plaintiffs pled a new negligence theory -- failing to adequately restrain Jolivette after the November 4 pacemaker implantation -- that is not subsumed within the "catch-all allegations of negligence" claims of the original and first amended petitions. Christus asserts that the post-fall, lack-of-restraint theory is based on a new, distinct, or different transaction or occurrence and is barred by the statute of limitations. The two year statute of limitations for medical negligence actions is found in section 74.251 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251 (Vernon 2005). Christus asserts Hall did not plead her new negligence theory until after the statute of limitations had run, and the trial court's judgment should be reversed and a take-nothing judgment rendered.

Appellees argue the allegations in the original and amended petitions are broad enough to encompass any post-operative nursing negligence. ⁽²⁾ A review of the first petition reveals plaintiffs asserted a tort claim concerning the implantation of a cardiac pacemaker and the subsequent dislodgement of pacemaker leads caused by Christus's negligence. The second amended petition likewise presents a claim of negligent care causing dislodgement of the leads. The original petition focuses on the fall from the catheterization table as the cause of dislodgement, and the last petition adds the after-fall care as a cause.

Even if the amended petition is interpreted as changing the facts or grounds of liability, the subsequent amendment is not subject to a plea of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (Vernon 1997). Section 16.068 provides that if a filed pleading relates to a cause of action that is not subject to a plea of limitation when the pleading was filed, a subsequent amendment that changes the facts or grounds of liability is not subject to a plea of limitation unless the amendment is wholly based on a new, distinct, or different transaction or occurrence. Id.; see Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 121-22 (Tex. 2004). Both Hall's original and amended petitions sought the recovery of damages caused by the hospital staff's negligent supervision of Jolivette following the implantation of a cardiac pacemaker.

Christus relies on Sanders v.Construction Equity, Inc., 42 S.W.3d 364, 369 (Tex. App.--Beaumont 2001, pet. denied). There, the homeowners sued a builder "for monetary damages arising out of a defective fireplace and gas logs that did not work properly." Id. at 366. After the statute of limitations expired, the plaintiffs filed an amended petition asserting construction defect claims under various causes of action. Id. at 366-68. "[T]he Sanders' second amended petition assert[ed] new claims unrelated to the fireplace and gas log problems[.]" Id. at 367. We explained the original pleading was specific and narrowly focused, and the "host of new complaints" asserted as defects in the second amended pleading did not relate back to the timely-filed initial pleading. Id. at 369. Unrelated to the fireplace and logs, the new assertions were a "myriad of complaints terminating in the conclusion by the Sanders that the house was just poorly constructed overall." Id. The instant case is distinguishable. While Sanders involved new claims and new injuries, the injury here is dislodgement of the pacemaker leads caused by negligent care after the implantation of the pacemaker.

Christus also relies on Harris v. Galveston County, 799 S.W.2d 766 (Tex. App.--Houston [14th Dist.] 1990, writ denied). There, the plaintiff filed three petitions. Id. at 767-68. The original petition against the county hospital, doctors, and a nurse alleged negligence in connection with the plaintiff's surgery. Id. at 767. The second amended petition alleged causes of action against the county for negligent monitoring of staff physicians under the Texas Tort Claims Act. Id. The third amended petition alleged for the first time a cause of action for negligent post-operative use of property (failure to obtain a proper bed). Id. at 767-69. The court of appeals found the new cause of action did not relate back to the original petition and was barred by limitations. Id. at 769. Harris also is distinguishable. Unlike Harris, the negligence claims here involve a continuum related to a failure to properly attend, monitor, and restrain Jolivette after the doctor implanted the pacemaker.

Christus refers us to Contreras v. Halcomb, No. 13-97-895-CV, 1999 Tex. App. LEXIS 5289 (Tex. App.--Corpus Christi July 15, 1999, no pet.) (not designated for publication). The plaintiff sued the doctor for negligence relating to two surgeries; ultimately, the plaintiff filed a third amended petition for a doctor visit based on a different act of negligence that "cannot be considered as a continuous course of treatment related to the first and second surgeries. . . ." Id. at **9-10. Unlike Contreras, the acts of negligence here are part of a continuous course of treatment.

The occurrence on which the plaintiffs' suit is based is the dislodgement of the pacemaker leads. Whether the leads were dislodged by the fall from the table in the heart catheterization laboratory or by Jolivette's post-fall arm movements, the claimed breach of duty by Christus is still the failure to properly monitor and restrain Jolivette, and the claimed injury is still dislodgement of the leads.

"An original pleading tolls the limitation period for claims asserted in subsequent, amended pleadings as long as the amended pleading does not allege a wholly new, distinct, or different transaction." Alexander, 146 S.W.3d at 121. The plaintiffs' original and amended petitions both sought the recovery of damages caused by the hospital staff's alleged negligent supervision of Jolivette following the implantation of a cardiac pacemaker. The second amended petition relates back to the original petition. We overrule issue one.

Causation

Christus argues in issue three that the evidence is legally and factually insufficient to support a finding of proximate cause -- specifically that Christus's failure to apply post-operative restraints on Jolivette proximately caused the dislodgement of her pacemaker leads. In a medical negligence case, the plaintiff must show by a preponderance of the evidence to a degree of "reasonable probability" that the injury was proximately caused by the negligence of the defendant. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 399-400 (Tex. 1993); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988). Proximate cause consists of both cause-in-fact and foreseeability. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). To prove causation, the negligent act or omission must be "shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred." Kramer, 858 S.W.2d at 400; see also Park Place Hosp., 909 S.W.2d at 511.

Lucilla Yeung, a geriatric nurse practitioner, testified concerning standards of care for nurses and breaches of those standards. Though qualified to testify to those elements, a nurse, under Texas law, is not qualified to testify to medical causation of a patient's injury. Section 74.403(a) of the Texas Civil Practice and Remedies Code provides (subject to certain exceptions not applicable here) as follows:

[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 from accepted standards of care and the injury, harm, or damages claimed only if the person is a physician and is otherwise qualified to render opinions on that causal relationship under the Texas Rules of Evidence.

  Tex. Civ.Prac. & Rem. Code Ann. § 74.403(a) (Vernon 2005); see also Kettle v. Baylor Med. Ctr. at Garland, 232 S.W.3d 832, 841 (Tex. App.--Dallas 2007, pet. denied) (A registered nurse may not testify as to medical causation of a patient's injury or that any particular treatment would have prevented injury; however, a nurse's medical expert report may be considered in conjunction with a physician's medical expert report.); Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90-91 (Tex. App.--El Paso 2005, no pet.).

Dr. Bransford, the physician who implanted the pacemaker, is the only physician who testified to post-fall causation. He explained that an exaggerated arm movement can pull the lead out of position. He stated that Jolivette's post-operative movement of her arm probably caused the dislodgement of the leads --- though he could not say with one hundred percent certainty it was the cause. "[I]t is the only scientific, reasonable, more likely than not explanation that thing that could have caused it within this time frame[.]" Dr. Bransford testified:

Q. [Plaintiff's Counsel]: Okay. Had they contacted you after these three inciden[ts], would you have permitted at least soft restraints?

A. [Dr. Bransford]: Yes.

Q. That . . . would have been sufficient probably to prevent the movement of the arms that would have caused the dislodgement?

A. Yes, I agree.

Dr. Bransford also testified to the following:

Q. [Plaintiff's Counsel]: And you answered a question to [defense counsel] and I may have missed it when he said when you have a patient who is -- who is doing this after a few hours after the pacemaker implantation, would the next step be to jump to the restraints and I heard you say yes.

A. [Dr. Bransford]: I did.

Q. And --

A. But that's not what I did.

Q. Can the nurses phone you and say, "We're going to restrain this patient. What do you think?"?

A. Sure, they can -- they can ask that question.

Q. Who has more contact with the patients on an hour to hour basis; you or the nurse?

A. The nurses.

Q. And as a medical doctor, you rely on the nurses to contact you about this, right?

A. Yes, and they did contact me.

Q. In this situation, had these nurses told you about all these instances, Dr. Bransford, where she's climbing through the bed rails, she's moving her arms, where she's wondering in the hallway, wouldn't you -- if they had told you the whole story, wouldn't you have suggested a restraint?

A. Be honest with you, I suspect they did tell me the whole story. You know, one of the problems with restraints and physicians, you know, it is we get such negative feedback from families and patients about restraints that, yes, maybe sometimes you do break our own rules and may start off with a little bit of sedation. It is such a big deal. I'm not -- I can't put it off on these nurses. I do think they did notify me.

Q. And had the nurses wanted to, they could have said, "We really think this patient needs to be restrained," and you would have done it?

A. Well, yeah.

. . . .

Q. The answer to the question is had the St. Elizabeth nurses said, "Based upon our contact with this patient, we must restrain her," they could have, a, done it and, b, told you about it?

A. I don't know if they can. I think they have to have special orders for that.

Q. What is the rule on that at St. Elizabeth, do you know?

A. No. I rely on the nurses to help me with that.

. . . .

Q. But in this instance, had these nurses told you, "Restrain this patient," you would have done it?

A. Well, yes.

Q. And they didn't tell you that?

A. Yes, but I can hardly find fault with them for that. I'm ultimately response I believe.

Q. All right. I understand that, Doctor. But they're the ones that have more contact with the patient, don't they?

A. I agree, yes.

Dr. Bransford's testimony is conflicting. He indicated that had the nurses contacted him after these incidents, he would have permitted at least soft restraints, and those restraints would have probably been sufficient to prevent the arm movement that caused the dislodgement. Yet he also testified the nurses did contact him, and he suspects they did tell him "the whole story." They informed him of Jolivette's arm movement and agitation. In response, he ordered Ativan, not physical restraints.

When analyzing a legal sufficiency claim, we view the evidence in the light most favorable to the verdict, and credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The evidence is legally sufficient if it enables reasonable and fair-minded people to reach the verdict under review. Id. at 827. In a factual sufficiency review, a court of appeals considers all of the evidence and sets aside the 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 unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Dr. Bransford testified at one point that had the nurses expressly informed him of the need for a higher level of restraints, he would have ordered them. He also testified the nurses informed him about Jolivette's condition, and he responded by ordering a chemical restraint. In a legal sufficiency review, assuming reasonable jurors could resolve conflicts in the evidence, an appellate court generally disregards the conflicting evidence that does not support the verdict. See City of Keller, 168 S.W.3d at 821. Dr. Bransford's conflicting testimony provides some evidence to support the jury's proximate cause finding. We therefore overrule appellant's legal sufficiency point and deny the request that a take-nothing judgment be rendered.

Christus also attacks the factual sufficiency of the evidence. Under the Texas Constitution, courts of appeals are charged with conducting "conclusive appellate review of all factual sufficiency questions that are properly presented on appeal." In re M.R.J.M., 193 S.W.3d 670, 675 (Tex. App.--Fort Worth 2006, no pet.) (citing Tex. Const. art. V, § 6(a); Tex. Gov't Code Ann. § 22.225(a)(Vernon Supp. 2007)). Factual sufficiency points assume conflicting evidence on an issue, and argue that a finding is erroneous because the evidence supporting the finding, though legally sufficient, is too weak or the evidence against the finding is overwhelming. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App.--Amarillo 1988, writ denied).

By statute, only a physician is qualified to testify to the "causal relationship between the alleged departure from accepted standards of care and the injury . . . ." See Tex. Civ. Prac. & Rem. Code Ann. § 74.403(a). Dr. Bransford explained his opinion that the nurses were not at "fault," which suggests the nurses' conduct was not the cause of the injury in his view. Although Dr. Bransford indicated he would have ordered restraints had he been expressly informed of the need for them, he also testified he could "hardly find fault" with the nurses' reports to him, and that he "can't put it off on these nurses. I do think they did notify me." He suspected they did tell him "the whole story." He explained the problematic nature of physical restraints and the "negative feedback" from families and patients. After the nurses called to inform him of Jolivette's condition, Dr.Bransford chose not to move to a higher level of restraint and instead ordered a chemical restraint. Dr. Bransford's testimony that he could "hardly find fault" with the nurses' reports to him, along with medical records documenting calls to Dr. Bransford and his order for medication rather than physical restraints, makes his other testimony too weak to support the finding that the nurses' conduct was a proximate cause of injury. The factual sufficiency point in issue three is sustained. ⁽³⁾ When a court of appeals sustains a factual sufficiency point, the case must be remanded for a new trial. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex. 1981). The judgment is reversed, and the case is remanded for a new trial.

REVERSED AND REMANDED.

____________________________

DAVID GAULTNEY

Justice

Submitted on March 13, 2008

Opinion Delivered July 17, 2008

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Jolivette's children -- Rosalind Hall, James Weisner, and Gwendolyn Washington -- filed suit, as representatives of Jolivette's estate, against Christus.

2. Appellees also argue Christus waived any complaint about the "catch-all" negligence allegations by failing to specially except.

3.

In its last issue, Christus also argues the plaintiff failed to prove that the sum awarded by the judgment for medical expenses was actually paid or incurred by or on behalf of Jolivette. Section 41.0105 of the Texas Civil Practice and Remedies Code provides as follows:

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 (Vernon Supp. 2007). The statute is a limitation on recovery of medical expenses. Christus argues that there is no proof that judgment amount was actually incurred or paid by the plaintiffs, or on their behalf. We need not reach this issue, however, because a new trial is required under issue three.