Pratho v. Zapata , 2005 Tex. App. LEXIS 1189 ( 2005 )

OPINION

BOB McCOY, Justice.

Appellant Scott Mason Pratho, M.D. appeals from a judgment rendered on a jury verdict awarding damages to the survivors of his deceased patient, Reynaldo Zapata, after Dr. Pratho failed to diagnose and treat Zapata’s heart condition. Lupe Zapata also appeals the trial court’s judgment notwithstanding the verdict invalidating the jury’s award of damages for pain and suffering sustained by Zapata before his death. Because we hold that Mrs. Zapata produced legally sufficient evidence of proximate cause, and because we further hold that she established standing to sue on behalf of Zapata’s estate at the time of trial, we will affirm the trial court’s judgment in part and reverse in part.

Forty-nine-year-old Reynaldo Zapata died at home of a heart attack on May 27, 1997. In the two weeks before his death, Zapata had been evaluated and treated by two emergency room physicians at Harris Methodist Southwest Hospital and a family practitioner, all of whom failed to diagnose Zapata’s heart problem: unstable angina. Zapata was first seen by emergency room physician Brett Landon Cochrum, M.D., at Harris Methodist on May 19, 1997, where he complained of a burning throat and tingling in his right arm. Dr. Cochrum concluded that Zapata was suffering pain from an upper respiratory infection and treated him accordingly.

Zapata returned to the emergency room the next day, May 20, 1997, where he was seen by Dr. Pratho. Dr. Pratho’s assessment was that Zapata suffered from “[njonspecific neck pain possibly related to cervical disc disease.” Dr. Pratho prescribed Zapata pain medications and steroids, placed his neck in a soft cervical collar, and directed him to follow up with his family practitioner in “the next available appointment for reevaluation and possible work-up.”

The following day, May 21, 1997, Zapata was seen by John E. Staniland, M.D., the partner of Zapata’s regular family doctor. Dr. Staniland diagnosed Zapata with “mus-culoskeletal pain radiating from the neck.” Dr. Staniland prescribed a narcotic pain medication, ordered an x-ray of Zapata’s neck, and referred Zapata to a neurologist. Zapata suffered a heart attack and died six days later.

Zapata’s widow, on behalf of herself, her two children fathered by Zapata,¹ and Zapata’s estate, sued Harris Methodist and the three doctors,² alleging that the doctors’ failure to diagnose and treat Zapata’s heart condition proximately caused Zapata’s death and ensuing damages to his wife and children. After Mrs. Zapata settled during trial with Harris Methodist, Dr. Cochrum, and Dr. Staniland, the trial court submitted her claims against Dr. Pratho to the jury. The jury found Dr. Pratho negligent and further found that 30% of the negligence that caused Zapata’s death was attributable to Dr. Pratho.

I. DR. PRATHO’S APPEAL

On appeal, Dr. Pratho argues that the judgment against him should be reversed because Mrs. Zapata did not produce legally sufficient evidence of proximate cause. Dr. Pratho acknowledges that there was expert testimony that the medical treatment by other defendants were proximate causes of Zapata’s death, but he claims there was no expert testimony that the treatment he provided was a proximate cause of Zapata’s death. Furthermore, Dr. Pratho claims that the evidence failed to establish that he should have foreseen that his treatment would result in Zapata’s death.

In determining a “no-evidence” issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

In a medical malpractice case, a plaintiff must prove that the negligence of the defendant physician proximately caused the injury alleged. Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex.1965). To establish proximate cause, a plaintiff must show (1) cause-in-fact, i.e., that the defendant’s negligence was a substantial factor in bringing about the injury and without which no harm would have occurred, and (2) foreseeability, i.e., that the defendant should have anticipated the danger that resulted from his or her negligence. Arlington Mem’l Hosp. Found., Inc. v. Baird, 991 S.W.2d 918, 922 (Tex.App.-Fort Worth 1999, pet. denied). The trier of fact may decide the issue of causation in medical malpractice cases based upon (1) scientific principles provided by expert testimony allowing the fact finder to establish a traceable chain of causation from the condition back to the event; (2) a probable causal relationship as articulated by expert testimony; or (3) general experience and common sense from which reasonable persons can determine causation. Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex.App.Fort Worth 2003, pet. denied) (citing Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex.1969)).

Dr. Pratho argues that because Mrs. Zapata presented no expert testimony articulating a probable causal relationship between his treatment of Zapata and Zapata’s death, the evidence was legally insufficient to support the jury’s verdict against him. Under Marvelli, however, this is only one manner of proving causation. If the expert testimony presented by Mrs. Zapata established medical principles that allowed the jury to trace a chain of causation from Zapata’s death back to Dr. Pratho’s treatment of him the second time he visited the emergency room, then the jury had sufficient evidence before it of causation and its verdict will stand. See id at 470; Rocor Int’l, 77 S.W.3d at 262.

At trial, Mrs. Zapata presented the expert witness testimony of William O’Rior-dan, M.D., a physician who is board certified in emergency medicine. The expert witness testified that Zapata probably was suffering from unstable angina due to the following symptoms that Zapata exhibited when he was treated by Dr. Cochrum at his first emergency room visit:

• one and one-half weeks of waxing and waning symptoms with a variety of locations of discomfort;

• pain or discomfort and symptomology that increased with exertion;

• an EKG that was “highly suspicious for having an old inferior wall or old heart attack or a previous heart attack” and that contained “slightly down sloping or horizontal type[s] of changes”; and

• risk factors, including his male gender, obesity, and smoking.

The expert witness testified that Zapata presented symptoms similar to these to Dr. Pratho when Zapata returned to the emergency room the next day.

In addition, the expert witness opined that both Dr. Cochrum and Dr. Pratho were negligent in failing to treat Zapata’s heart condition. In discussing Dr. Cochrum’s negligence, the expert witness explained the omissions made by Dr. Cochrum that formed the basis of his negligence opinion:

The presentation [of Zapata’s symptoms] required the patient being admitted into the hospital under a cardiologist’s care, and in the emergency department treating the patient by starting an IV, administering oxygen, finding out how much oxygen he had circulating in his blood through a pulse oxymeter, administering the Nitroglycerin, aspirin, a medication through the IV or by mouth to lower the blood pressure, and if the chest pain did not disappear, start intravenous Nitroglycerin. Also, blood thinners which were the standard at that time in the form of either a substance called Heparin or glomalocary (phonetic) Heparin should have been started.

The expert further testified that this negligence was a proximate cause of Zapata’s death. The expert witness did not, however, go on to state specifically that Dr. Pratho’s negligence was also a proximate cause of Zapata’s death.

Nevertheless, we conclude that this expert testimony provides legally sufficient evidence of a causal relationship between Dr. Pratho’s treatment and Zapata’s death because the expert witness’s testimony set forth medical principles that, under the facts of this case, applied to both Dr. Coch-rum and Dr. Pratho. The expert’s testimony provided evidence that Zapata exhibited certain symptoms of unstable angina both when he was treated by Dr. Cochrum and when he was treated by Dr. Pratho and that these symptoms required actions such as admitting Mr. Zapata to the hospital and consulting a cardiologist — actions that Dr. Pratho did not take. Furthermore, the expert witness’s testimony provided evidence that the failure to take these actions caused Zapata’s death.

Even so, Dr. Pratho argues that there is no evidence of proximate cause because there was no evidence of foreseeability. Dr. Pratho argues that Mrs. Zapata proffered no evidence that he should have reasonably foreseen that his specific treatment of Zapata — sending him home with instructions to follow up with his primary care physician — would lead to Zapata’s death. Dr. Pratho argues that because Dr. Cochrum sent Zapata home only and did not additionally instruct him to see his primary care physician, Dr. Pratho’s course of treatment differed from Dr. Cochrum’s, so any causation evidence relating to Dr. Cochrum’s treatment is inapplicable to the differing treatment that Dr. Pratho provided to Zapata.

This argument fails to acknowledge, however, that Dr. Pratho’s negligence and Dr. Cochrum’s negligence were the same: they both failed to provide proper medical care for Zapata’s unstable angina. Dr. Pratho committed the same negligent omissions that Dr. Cochrum committed; they both failed to admit Zapata to the hospital under a cardiologist’s care, and they both failed to treat Zapata in the emergency room by starting an IV, administering oxygen, measuring the amount of oxygen in Zapata’s blood, and administering blood pressure-lowering medication and blood thinners. While Dr. Pratho may have instructed Zapata to follow up with his primary care provider, this instruction does not ameliorate Dr. Pratho’s omissions in the emergency room — the type of omissions that, according to the expert’s testimony, were the cause of Zapata’s death.

At trial, the court properly instructed the jury on the foreseeability element of proximate cause with respect to Dr. Pra-tho: “In order to be a proximate cause, the act or omission claimed of must be such that an emergency room physician using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.” See Arlington Mem’l, 991 S.W.2d at 922. The expert witness testified at trial that Dr. Pratho, as an emergency room physician, should have had actual awareness of the risk that if Zapata had unstable angina and were sent home without treatment, his condition could lead to a heart attack and even death.

Despite his argument to the contrary, Dr. Pratho did send Zapata home untreated; as the expert witness explained, the proper treatment of Zapata’s condition involved hospital admission, consultation with a cardiologist, and administration of oxygen and medicines in the emergency room, but Dr. Pratho sent Zapata home without taking any of these actions. The mere fact that Dr. Pratho told Zapata to follow up with his primary care physician does not affect the awareness that sending Zapata home without treating his heart condition could lead to Zapata’s death. We conclude that this evidence satisfies the legal definition of foreseeability, as the jury was properly instructed. See id. Furthermore, the scientific principles established by the expert witness’s testimony allowed the jury to conclude that Dr. Pra-tho’s negligence proximately caused Zapata’s death because Dr. Pratho committed the same omissions that Dr. Cochrum committed — omissions that, according to the expert’s testimony, were a proximate cause of Zapata’s death. Accordingly, we overrule Dr. Pratho’s issue on appeal.

II. MRS. ZAPATA’S CROSS-APPEAL

In a cross-appeal, Mrs. Zapata challenges the trial court’s grant of Dr. Pra-tho’s motion for judgment notwithstanding the verdict regarding the damages awarded by the jury to Zapata’s estate, in which Dr. Pratho argued that Mrs. Zapata failed to present evidence that she had standing to bring suit on behalf of Zapata’s estate.

In her live petition at the time of trial, Mrs. Zapata pleaded that she had standing as an heir to assert claims on behalf of Zapata’s estate because no estate had been opened and no probate was necessary. After trial, however, Mrs. Zapata requested leave to file an amended petition substituting her daughter, Sabrina Zapata Nava, as the plaintiff for claims brought on behalf of Zapata’s estate. This motion for leave to file asserted that Sabrina had been appointed the administrator of Zapata’s estate and was therefore the proper plaintiff for the estate’s survival claims. The trial court judge refused Mrs. Zapata’s request for leave to amend, granted Dr. Pratho’s motion for JNOV regarding the estate’s recovery, and rendered a judgment for Mrs. Zapata that excluded the survival damages awarded by the jury to Zapata’s estate.

Texas’s survival statute provides that a cause of action for personal injuries suffered by a person who has died survives to and in favor of the heirs, legal representatives, and estate of the injured person. Tex. Civ. Prac. & Rem.Code Ann. § 71.021(b) (Vernon 1997). The estate of a person with a spouse and children who dies intestate passes to the decedent’s heirs: the spouse and children. See Tex. PROb.Code Ann. §§ 37, 38(b)(1) (Vernon 2003). Generally, however, only the personal representative of an estate is entitled to sue to recover estate property. Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex.1998). This general rule has specifically been applied by the Texas Supreme Court to survival actions. See id.

An exception to this general rule allows an heir, rather than the estate’s personal representative, to sue to recover estate property when the heir pleads and proves that there is no estate administration pending and none is necessary. See id. Mrs. Zapata argues that she qualified under this exception to sue as an heir on behalf of Zapata’s estate and that the trial court erred in granting Dr. Pratho’s motion for JNOV because she established standing to bring claims on behalf of Zapata’s estate by presenting evidence that no estate administration was pending and none was necessary.

A. “Pending” estate administration

Under the general rule applied in Shepherd v. Ledford, if an estate is pending, an heir does not have standing to sue on behalf of the estate because the estate’s personal representative generally has the exclusive right to bring such suits. See id. at 31-32; Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801, 806 (1956). Mrs. Zapata filed her application for letters of administration while the trial was taking place. Therefore, if an estate is “pending” at the time a request for letters of administration is filed in probate court, Mrs. Zapata could not qualify at the time of trial to sue as an heir on behalf of Zapata’s estate. Cf. Henry v. LaGrone, 842 S.W.2d 324, 326-27 (Tex.App.-Amarillo 1992, no writ) (holding that the estate of an incapacitated person was pending before the probate court upon the filing of a motion for appointment of a guardian).

The probate court did not issue the requested letters of administration naming Sabrina as personal representative of Zapata’s estate until September 12, 2002— two months after the jury returned its verdict. Consequently, Sabrina did not have standing at the time of trial to sue as an administrator on behalf of Zapata’s estate because the probate court had not yet appointed her administrator of the estate. See Lorentz v. Dunn, 112 S.W.3d 176, 179 (Tex.App.-Fort Worth 2003, pet. granted) (holding that plaintiff who was not named personal representative until twelve days after filing suit on behalf of the estate did not have standing at the time suit was filed). Therefore, if Zapata’s estate was “pending” upon the institution of proceedings in the probate court, at the time of trial there could have been no one with standing to sue on behalf of Zapata’s estate — no personal representative because none had yet been appointed, and no heir because an estate was pending in the probate court.

The Probate Code does not explicitly define the moment at which an estate is “pending,” but section 160, titled “Powers of Surviving Spouse When No Administration is Pending,” provides that a surviving spouse has certain powers over community property “[w]hen no one has qualified as executor or administrator of the estate of a deceased spouse.” Tex. Prob.Code AnN. § 160(a). Under this section, then, “when no administration is pending” is “when no one has qualified as executor or administrator of the estate.” Other sections of the Probate Code that reference an estate that is “pending” contemplate that a personal representative has already been appointed. See, e.g., id. §§ 177, 338, 460. Furthermore, the mere filing of a proceeding in the probate court does not necessarily cause an estate to be “pending.” See In re John G. Kenedy Mem’l Found., No. 13-03-696-CV, 2004 WL 1335849, at *9 (Tex.App.-Corpus Christi June 16, 2004, orig. proceeding) (holding that a bill of review filed in probate court after the estate had been closed did not render the estate “pending”). Because the probate court must determine that an administration is necessary before issuing letters of administration, see Tex. Peob.Code Ann. § 88(d), instituting proceedings in the probate court by filing an application for letters of administration does not guarantee that a personal representative will be appointed. If the court declines to appoint a personal representative, it is illogical to conclude that an estate was pending from the time of filing until the court’s refusal because this refusal indicates that no estate was necessary.

Accordingly, we determine that an estate is not “pending” for purposes of applying the exception to the survival statute unless and until a probate court appoints a personal administrator of the estate. Therefore, no estate was pending either at the time Mrs. Zapata filed the survival cause of action or at the time of trial.

B. Necessity of estate administration

Also under the general rule applied in Shepherd v. Ledford, an heir does not have standing to sue on behalf of the estate if an estate administration is necessary. See 962 S.W.2d at 31-32. The probate code specifically states that this “necessity” exists if two or more debts exist against the estate or if it is desired to have the county court partition the estate among the distributees. See Tex. Peob. Code Ann. § 178(b).³ The supreme court has held that this “necessity” does not exist when all the estate’s debts have been paid and the decedent’s family has agreed upon a manner of distributing the assets of the estate. See Shepherd, 962 S.W.2d at 33-34.

At trial, Zapata’s lawyer asked the trial court during its case-in-chief to “take judicial notice of the fact that there is no estate pending,” but he also informed the trial court that he had filed an application for letters of administration in the probate court that had not yet been issued. Furthermore, at the hearing on Dr. Pratho’s motion for instructed verdict held after Mrs. Zapata rested her case, Zapata’s lawyer asked the court “to take judicial notice of the contents of the filings in the Tarrant County Probate Court. We have asked that an estate be opened in the name of The Estate of Reynaldo Zapata, Deceased .... So that’s pending.”

The only evidence regarding the lack of the necessity of an estate administration was Sabrina’s testimony that it was her understanding that all Zapata’s heirs had signed an agreement regarding the division of his estate and that his debts had been paid. However, Mrs. Zapata’s application for grant of letters of administration averred otherwise:

A necessity exists for the administration of this estate ... for the reason that the Applicant has pursued a survival cause of action for the Decedent’s medical costs, burial costs, and conscious pain and suffering prior to death in [this lawsuit]. That survival claim comprises funds or property due to the estate; it is necessary that the court issue letters of administration to recover those funds or property, and property [sic] distribute them to the estate.

Therefore, at the same time Mrs. Zapata was asserting in the trial court that an estate administration was not necessary, she was claiming in the probate court that an estate administration was necessary. See Tex. PROb.Code Ann. § 82(h) (providing that an application for letters of administration shall state that a necessity exists for administration of the estate); id. § 178(b) (stating that a necessity for an estate exists “if or when it is desired to have the county court partition the estate among the distributees”).

Nevertheless, the evidence showed that at the time of trial, there was no need for an estate administration. Sabrina’s testimony, uncontroverted by Dr. Pratho, established that Zapata’s debts had been settled and his heirs had agreed to a distribution of his estate. See Shepherd, 962 S.W.2d at 33-34. The necessity urged in Mrs. Zapata’s application in the probate court — to obtain and distribute the recovery to Zapata’s heirs — would not arise unless and until any recovery for the survival action was actually awarded. Accordingly, we hold that at trial, Mrs. Zapata sufficiently pleaded and proved that no estate administration was pending and none was necessary.

Contrary to Dr. Pratho’s assertions, Mrs. Zapata never abandoned or changed her position on her standing as an heir at the time of trial; at the JNOV hearing, her counsel reiterated that she satisfied the Shepherd v. Ledford exception at the time of trial and that the trial court had jurisdiction over the survival claim.⁴ Therefore, the JNOV was improper because the evidence before the trial court was sufficient to establish that Mrs. Zapata had standing to sue as an hem on behalf of Zapata’s estate. See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991) (stating that a court may render a JNOV if a directed verdict would have been proper); see also Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000) (explaining that a directed verdict is proper only when the evidence conclusively establishes the right of the movant to judgment or negates the right of the opponent).

C. Amended Pleading and Relation-Back Doctrine

After trial but before the trial court rendered judgment on Zapata’s claims, the probate court opened an administration of Zapata’s estate, naming Sabrina as its personal administrator. With this estate administration pending, Sabrina then became the only party able to maintain a suit on behalf of Zapata’s estate. See Chandler, 294 S.W.2d at 806. Mrs. Zapata argues that the trial court should have allowed her post-trial motion for leave to file her amended petition naming Sabrina as plaintiff for the survival claim of Zapata’s estate, even though the two-year statute of limitations had run on the survival claim, because the amended petition related back to the original petition filed within the limitations timeframe.

A trial court has no discretion to refuse a post-trial amendment of pleadings unless the opposing party presents evidence of surprise or prejudice or the amendment asserts a new cause of action or defense and the opposing party objects to the amendment. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.), cert. denied, 512 U.S. 1236, 114 S.Ct. 2740, 129 L.Ed.2d 860 (1994). Dr. Pratho’s response to Mrs. Zapata’s motion for leave to file complained that Mrs. Zapata sought to plead factual allegations that were wholly opposite to the evidence presented at trial, creating “a wholly new, distinct and different proceeding with regards to the Estate of Reynaldo Zapata.” But Dr. Pra-tho’s response did not include evidence that the amendment would cause surprise or prejudice his defense, and this amendment did not seek to add a new claim to the lawsuit. Therefore, the trial court had no discretion to refuse Mrs. Zapata’s request to file her amended petition. See id.

Even though the amended petition was filed outside the statute of limitations for the estate’s survival claim, it would have related back to the earlier petition because Mrs. Zapata pleaded and proved standing as an heir at the time of trial. See Tex. Civ. PRác. & Rem.Code Ann. § 16.068 (Vernon 1997);⁵ cf. Lovato v. Austin Nursing Ctr., Inc., 113 S.W.3d 45, 55 (Tex.App.-Austin 2003, pet. granted) (holding that post-limitations pleading amendment naming plaintiff as estate representative related back to original pleading because plaintiff had authority to sue as an heir at the time suit was filed); Lorentz, 112 S.W.3d at 179 (holding that amended pleading did not relate back because plaintiff did not show that she possessed standing when she filed the original pleading).⁶ With the operation of the relation-back doctrine, therefore, the post-verdict petition substituting the estate’s personal representative named the proper party for Zapata’s survival action and was timely filed. Accordingly, we hold that the trial court erred in granting the JNOV and sustain Mrs. Zapata’s issue on appeal.

Having overruled Dr. Pratho’s issue, we affirm the portion of the trial court’s judgment attributing responsibility to Dr. Pra-tho for Zapata’s death. Furthermore, having sustained Mrs. Zapata’s issue, we reverse the portion of the judgment that disregarded the jury’s findings on the estate’s survival cause of action and render judgment that past damages sustained by Zapata’s estate for pain and mental anguish suffered by Reynaldo Zapata before death amount to $406,000, the amount found by the jury. We remand the cause to the trial court for computation of interest.

WALKER, J. filed a concurring opinion.

1 . Zapata had two children with Lupe Zapata (Sabrina Zapata Nava and Gregory Zapata) as well as four other children from a previous marriage.

2 . Zapata also sued the doctors’ professional associations, but due to a settlement and a directed verdict, these claims were not submitted to the jury.

3 . These are not the only situations in which necessity for an estate administration may arise; "mention of these twb instances of necessity for administration shall not prevent the court from finding other instances of necessity upon proof before it.” Id.

4 . While arguing at this hearing, Mrs. Zapata's counsel stated that "[i]t became necessary to open an estate because we were unable to secure a binding agreement with other members of the family.” Dr. Pratho contends that this statement is evidence that the family did not agree on the distribution of Zapata's estate. But counsel also explained near the end of trial that all family members had signed the agreement by the time Sabrina testified to the standing issue at trial. Regardless, none of these statements were made under oath, so they do not constitute evidence before the court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997).

5 . "If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.” Id.

6 . In Lorentz, we held that the plaintiff’s amended pleading did not relate back because the plaintiff, who was not named the personal representative until twelve days after filing suit on behalf of the estate, did not have standing at the time suit was filed, either as an heir or as a personal representative of the estate. Because the petition was filed by a plaintiff who lacked standing, it was a nullity; consequently, any amended petition could not relate back to it. Id. Here, Mrs. Zapata did have standing to sue on behalf of the estate as an heir at the time she filed her original petition, so the rule of Lorentz does not apply.