Marcus Smith, Individually, and as Representative of the Estate of Celia B. Smith v. Nexion Health at McKinney, Inc. D/B/A McKinney Healthcare and Rehabilitation Center and Menur Beshir, LVN ( 2023 )

AFFIRM in part and REVERSE and REMAND in part; and Opinion Filed
August 11, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01140-CV
MARCUS SMITH, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
ESTATE OF CELIA B. SMITH, DECEASED, Appellant
V.
NEXION HEALTH AT MCKINNEY, INC. D/B/A MCKINNEY
HEALTHCARE AND REHABILITATION CENTER AND MENUR
BESHIR, LVN, Appellees
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-02258
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Molberg and Carlyle
Opinion by Chief Justice Burns
In this medical negligence action, appellant Marcus Smith, individually and
as representative of the estate of Celia B. Smith, appeals the trial court’s order
granting summary judgment in favor of appellees Nexion Health at McKinney, Inc.
d//b/a McKinney Healthcare and Rehabilitation Center (MHRC) and Menur Beshir,
LVN. In four issues, appellant contends the trial court erred in granting summary
judgment because there are genuine issues of material fact as to (1) whether
appellees’ negligent acts proximately caused Smith’s death; (2) the applicable
standard of care, breaches by, and causation attributable to Beshir; (3) whether
appellees’ objection to the qualifications of appellant’s expert witness to testify on
Beshir’s standard of care was untimely; and (4) whether the summary judgment
granted more relief than appellees requested. We affirm in part and reverse and
remand in part.
Background
Celia Smith, a 91-year-old female with a history of dementia, hypertension,
and transient ischemic attack (TIA), was a MHRC resident.1 She was on a pain
management program and received physical therapy, occupational therapy, speech
therapy, and preventative skin care. Smith also required anticoagulation therapy via
Coumadin and frequent, serial coagulation level checks by Prothrombin Time
Test/International Normalized Ratio (PT/INR). She required assistance to bathe and
dress, but ate independently and was mobile in a wheelchair.
After a March 15, 2019 PT/INR, Smith’s Coumadin dosage was increased; it
was increased again on March 25. On March 26, Smith became lethargic with poor
oxygenation and a temperature of 103.6˚F. The next day, she was admitted to
Medical City McKinney (the hospital) for further evaluation and management of
sepsis. At the hospital, she was found to have a urinary tract infection (UTI). On
1
This background is drawn from evidence submitted with the parties’ briefing on the summary
judgment motion and a motion to exclude expert testimony filed by appellees and appellant’s second
amended petition.
–2–
March 28, she suffered nasal bleeding that contributed to respiratory distress
requiring intensive care treatment. The bleeding subsided, and her sepsis resolved
with antibiotic treatment.
Smith was discharged on April 4; her Coumadin was discontinued upon her
return to MHRC. She continued to be lethargic with decreased cognition. On April
9, her blood count revealed an elevated white blood cell count, but other values were
close to her baseline and unremarkable. On April 10, Smith’s attending physician,
Dr. Zafar, ordered a UA Culture and Sensitivity (UA C&S) and prescribed an
antibiotic. Dr. Zafar also ordered an infectious disease consult to check for C-diff
and, on April 11, Dr. Ahmed prescribed an additional antibiotic and lactobacillus.
On April 12, Smith returned to the hospital in acute respiratory distress. She
experienced a cardiopulmonary arrest approximately six minutes after her arrival
and was declared dead approximately two and one-half hours later.
Appellant, Smith’s son, brought this medical negligence action against
MHRC and Beshir, one of the nurses who cared for Smith. Appellant alleges a
number of failures, including failing to follow physician orders, implement nursing
interventions, and perform and report appropriate nursing assessments, by MHRC
staff and Beshir. Appellant further alleges that (1) the failure to obtain and monitor
PT/INR levels and administering Coumadin without the required PT/INR levels was
the proximate cause of Smith’s first hospitalization, and (2) Smith subsequently
suffered from “urosepsis, fulminant colitis, or a combination of the two” and the
–3–
failure to administer antibiotics and lactobacillus or obtain UA C&S and stool
samples caused Smith’s infection to deteriorate into “sepsis, septic shock and death.”
On behalf of Smith’s estate, appellant seeks survival damages; individually,
appellant seeks damages for Smith’s wrongful death.
Appellant designated Summit Gupta, M.D., a geriatrician and wound care
physician, as an expert witness. Dr. Gupta prepared an expert report and testified by
deposition. Thereafter, appellees filed both a motion to exclude Dr. Gupta’s
testimony and a no-evidence and traditional summary judgment motion. Appellees
asserted that Dr. Gupta’s opinions as to the cause of Smith’s death were speculative
and unreliable because he could not opine “to a reasonable degree of medical
probability” that she suffered from either urosepsis or fulminant colitis and,
therefore, that any act or omission by appellees caused her death. Absent Dr.
Gupta’s opinions, appellees were entitled to summary judgment because there was
no evidence of proximate cause. Appellees also asserted that there was no evidence
of medical negligence as to Beshir and that affirmative evidence negated breach on
the part of Beshir.
Following a hearing on the motions, the trial court entered (1) an order
excluding Dr. Gupta’s opinions and testimony for all purposes, and (2) an order
granting appellees’ summary judgment motion and ordering that appellant take
nothing by his claims against appellees. This appeal followed.
–4–
Standard of Review
We review a trial court’s decision to exclude an expert witness’s testimony
for an abuse of discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995). A trial court does not abuse its discretion simply because we
would have decided the matter differently. Id. Instead, we must determine “whether
the trial court acted without reference to any guiding rules or principles.” Id. We
must uphold the trial court’s decision if there is any legitimate basis for it. Owens-
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
We review a trial court’s order granting summary judgment de novo; in doing
so, we indulge every reasonable inference in favor of the nonmovant, resolve any
doubts in favor of the nonmovant, and take as true all evidence favorable to the
nonmovant. See Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671,
680 (Tex. 2017). If the trial court grants summary judgment without specifying the
grounds for the ruling, we must affirm the judgment if any of the grounds on which
judgment is sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d
244, 248 (Tex. 2013). If a party moves for summary judgment on both traditional
and no-evidence grounds, we generally address the no-evidence motion first. See
id. If the challenge to the no-evidence motion fails, we need not consider the
traditional motion. Id. However, if we are required to affirm a trial court’s ruling
on traditional grounds, we address only the traditional grounds. Regency Dev. &
–5–
Constr. Servs., LLC v. Carrington, No. 05-18-00564-CV, 2019 WL 4051831, at *4
(Tex. App.—Dallas Aug. 28, 2019, pet. denied).
A party may obtain a no-evidence summary judgment when there is no
evidence of one or more of the essential elements of a claim on which an adverse
party would have the burden of proof at trial. JLB Builders, L.L.C. v. Hernandez,
622 S.W.3d 860, 864 (Tex. 2021) (citing TEX. R. CIV. P. 166a(i)). When a no-
evidence motion is properly filed, the burden shifts to the nonmovant to present
evidence raising a genuine issue of material fact on each challenged element. Id.We sustain a no-evidence challenge when the evidence offered to prove a vital fact
is no more than a mere scintilla. See Merriman, 407 S.W.3d at 248. “When 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.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)
(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
Under the traditional summary-judgment standard, the movant has the burden
to show there is no genuine issue of material fact and it is entitled to judgment as a
matter of law. Vince Poscente Int’l, Inc. v. Compass Bank, 460 S.W.3d 211, 213–
14 (Tex. App.—Dallas 2015, no pet.); TEX. R. CIV. P. 166a(c). Once the movant
establishes its right to summary judgment as a matter of law, the burden shifts to the
non-movant to present evidence raising a genuine issue of material fact, thereby
precluding summary judgment. Id. A genuine issue of material fact exists if the
–6–
non-movant produces more than a scintilla of probative evidence regarding the
challenged element. Ward v. Stanford, 443 S.W.3d 334, 342 (Tex. App.—Dallas
2014, pet. denied). A defendant is entitled to traditional summary judgment if it
conclusively disproves at least one essential element of the plaintiff’s claim or
conclusively establishes every element of an affirmative defense. Id.Applicable Law
To prevail on a medical negligence claim, a plaintiff must prove that: (1) the
defendant owed the plaintiff a duty to act according to an applicable standard of care;
(2) the defendant breached the standard of care; and (3) the defendant’s breach
proximately caused damages to the plaintiff. Windrum v. Kareh, 581 S.W.3d 761,
768 (Tex. 2019). Establishing proximate cause requires evidence, to a reasonable
degree of medical probability, that (1) the act or omission was a cause in fact of the
injury and (2) the injury was foreseeable. Windrum, 581 S.W.3d at 777–79;
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex.
2009). A cause in fact “is established when the act or omission was a substantial
factor in bringing about the injuries, and without it, the harm would not have
occurred.” Windrum, 581 S.W.3d at 777 (quoting Bustamante v. Ponte, 529 S.W.3d
447, 457 (Tex. 2017)).
Expert testimony is required to establish breach of the standard of care and
proximate cause in medical negligence actions. See Jelinek, 328 S.W.3d at 533;
Ocomen v. Rubio, 24 S.W.3d 461, 466 (Tex. App.—Houston [1st Dist.] 2000, no
–7–
pet.). For expert testimony to be admissible, the expert must be qualified, and his
testimony must be relevant and based on a reliable foundation. Robinson, 923
S.W.2d at 556. “To be relevant, the expert’s opinion must be based on the facts; to
be reliable, the opinion must be based on sound reasoning and methodology.”
Schronk v. Laerdal Med. Corp., 440 S.W.3d 250, 257 (Tex. App.—Waco 2013, pet.
denied).
In a medical negligence case, the expert must, “to a reasonable degree of
medical probability, explain how and why the negligence caused the injury.”
Jelinek, 328 S.W.3d at 536. The expert cannot base the causal connection between
a defendant’s alleged negligence and a plaintiff’s injury upon mere conjecture,
guess, speculation, or possibility. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,
271 S.W.3d 238, 246–47 (Tex. 2008). “If no basis for an expert opinion is offered,
or the basis offered provides no support, the opinion is merely a conclusory
statement and cannot be considered probative evidence.” See Bustamante, 529
S.W.3d at 462. “Stated differently, an expert’s simple ipse dixit is insufficient to
establish a matter; rather, the expert must explain the basis of the statements to link
the conclusions to the facts.” Id. And, if the evidence demonstrates that there are
other plausible causes of the injury or conditions that could be negated, the plaintiff
must offer evidence excluding those causes with reasonable certainty. See Jelinek,
328 S.W.3d at 536 (“When the only evidence of a vital fact is circumstantial, the
expert cannot merely draw possible inferences from the evidence and state that ‘in
–8–
medical probability’ the injury was caused by the defendant’s negligence. The
expert must explain why the inferences drawn are medically preferable to competing
inferences that are equally consistent with the known facts.”).
The proponent of expert testimony bears the burden of showing that the
testimony is based on a reliable foundation. See Robinson, 923 S.W.2d at 556. The
trial court does not determine whether the expert’s conclusions are correct; instead,
it determines whether the expert’s analysis in reaching the conclusions is reliable
considering all the evidence. See Wiggs v. All Saints Health Sys., 124 S.W.3d 407,
410 (Tex. App.—Fort Worth 2003, pet. denied) (citing Gammill v. Jack Williams
Chevrolet, Inc., 972 S.W.2d 713, 728 (Tex. 1998)).
Analysis
In his first issue, appellant contends the trial court erred in granting summary
judgment because there are genuine issues of material fact on whether appellees’
negligent acts proximately caused Smith’s death. Because appellant relies on Dr.
Gupta’s expert report and deposition testimony to raise a fact issue on the causal
connection between Smith’s death and appellees’ negligence, we first must
determine whether the trial court properly excluded Dr. Gupta’s opinions.2
2
Appellant did not raise a separate issue on appeal asserting that the trial court abused its discretion in
granting the motion to exclude, but we consider the trial court’s ruling because appellant’s brief states that
he is appealing both orders and the motion to exclude “is inextricably intertwined in the arguments made
in connection” with the summary judgment motion. See TEX. R. APP. 38.1(f); Rohrmoos v. Venture UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 480 (Tex. 2019) (court should “broadly construe issues to
encompass the core questions and reach all issues subsidiary to and fairly included within them”).
–9–
1. Exclusion of Expert Testimony
Appellees moved to exclude Dr. Gupta’s testimony, asserting that his opinions
were unreliable and inadmissible. Specifically, appellees argued that there was no
evidence of either urosepsis or C. diff, one or both of which allegedly led to septic
shock and Smith’s death.
In his expert report, Dr. Gupta opined that, on the day Smith died, she had
sepsis based on a reasonable degree of medical probability. He attributed the sepsis
to urosepsis or C. diff infection:
. . . Given [Smith’s] recent urosepsis, [she] likely had a
recurrence of urosepsis that contributed to her septic shock on April 12.
The breaches in the standard of care by MHRC . . . contributed
significantly to this recurrence of urosepsis by contributing
significantly to the initial episode relating to the March 27 [hospital]
admission.
Another possible source for this sepsis may have been a C. diff
infection which is the reason stated by the physicians, including the
infectious disease specialist, for ordering Vancomycin . . . on [April
11]. [Smith] had risk factors for the development of this infection
which included recent and prolonged broad-spectrum antibiotic
treatment and hospital/ICU exposure, and the ordered Vancomycin
would be required to prevent a C. diff infection from deteriorating into
the severe form, fulminant colitis. . . . [T]he breaches in the standard
of care by MHRC was a proximate cause of her hospitalization on
March 27 and the corresponding antibiotic treatment which is likely
why a C. diff infection would have developed. Therefore, in case
[Smith] had a C. diff infection, it was proximately caused by the
aforementioned breach.
Based on a reasonable degree of medical probability, [Smith]
suffered from septic shock due to urosepsis, fulminant colitis, or a
combination of the two. As stated, the breaches in the standard of care
by MHRC contributed to the recurrence of the urosepsis and/or
–10–
fulminant colitis, depending on which case. Therefore, these breaches
contributed to the septic shock and the death of [Smith].
As support for his opinions, Dr. Gupta’s report cites an April 9 blood count, which
“revealed marked leukocytosis with a white blood cell (WBC) count of 25.7.”
Thereafter, Dr. Zafar ordered a chest x-ray, blood cultures, a UA C&S, antibiotics,
and an infectious disease consult. Dr. Ahmed prescribed additional medication and
ordered that a stool sample be tested for C. diff. According to Dr. Gupta’s report,
there were hospital lab findings consistent with sepsis.3 Dr. Gupta testified that,
having diagnosed sepsis, he “went to” “infection either of the colon or the urinary
tract” because no “proper workup” had been done. He acknowledged, however, that
Smith had been tested for infection at the hospital and her blood cultures were
negative for all bacteria. And, according to Dr. Gupta, the way to test for an infection
is to look for bacteria.
Appellees contend that the trial court properly excluded Dr. Gupta’s opinion
as to the cause of Smith’s death because he could not opine to a reasonable degree
of medical probability that Smith actually suffered from a UTI, a C. diff infection,
3
Whether Smith had sepsis is disputed. The hospital attributed Smith’s death to cardiac arrest, cause
unspecified. As support for his diagnosis that sepsis led to Smith’s death, Dr. Gupta pointed to a hospital
lab report showing Smith had a procalcitonin level at 1.98 and a note on the report, which indicated that “a
concentration under 0.5 represents a low risk of severe sepsis and/or septic shock” and “a concentration
greater than 2 represents a high risk of severe sepsis and/or septic shock.” Dr. Gupta also noted that Smith’s
WBC count at the hospital was 17.5. That count, however, was lower than the 25.7 recorded on April 9.
Dr. Gupta acknowledged that the hospital screened Smith for sepsis on her admission, but found that her
temperature, heart rate, and respirations indicated that she was not suffering from sepsis. He disagreed,
explaining that Smith “had infection that causes systemic reaction.” Dr. Gupta further testified that Smith
“had evidence of end organ damage to qualify for sepsis, which includes cardiovascular with hypertension”
and “qualifie[d] for shock given the hypotensive state that led to the cardiac arrest.”
–11–
urosepsis, or fulminant colitis or that any act or omission on the part of appellees
caused an infection. On this record, we agree.
Appellant had the burden of showing that Dr. Gupta’s opinions rested on a
reliable foundation. See Robinson, 923 S.W.2d at 556. Dr. Gupta agreed that his
opinion was grounded in two possibilities: (1) a UTI led to urosepsis, which led to
sepsis and septic shock; or (2) a C. diff infection led to fulminant colitis, which led
to sepsis and septic shock. His report asserts that Smith was “likely” to have had a
recurrence of urosepsis or “[a]nother possible source” for sepsis “may have been a
C. diff infection” because she “had risk factors for the development of [the]
infection.” Mere possibility, however, like speculation or conjecture, is not a basis
for a qualified opinion based on reasonable medical probability. Hogue, 271 S.W.3d
at 247; e.g., Eaglin v. Purcell, No. 02-20-00199-CV, 2021 WL 126595, at *5 (Tex.
App.—Fort Worth Jan. 14, 2021, pet. denied) (mem. op.) (expert’s “likely” medical
explanation as to how decedent went into arrest after discharge from hospital is
“mere guesswork” and no evidence of a substantial cause-in-fact); Steinkamp v.
Caremark, 3 S.W.3d 191, 199 (Tex. App.—El Paso 1999, pet. denied) (expert
evidence that plaintiff “may have suffered an isolated deep venous thrombosis” and
that “possibly the catheter . . . could have acted as a nidus, or a thing that would
trigger off clotting with the obstruction . . .” did not rise to required level of
reasonable medical probability or raise a fact issue on causation).
–12–
There also was some evidence of other plausible causes of Smith’s death, and
Dr. Gupta made no attempt to exclude those causes with reasonable certainty. See
Jelinek, 328 S.W.3d at 536; Gibson v. Planned Parenthood Gulf Coast, No. 14-18-
00498-CV, 2019 WL 3432147, at *5 (Tex. App.—Houston [14th Dist.] Jul. 30,
2019, pet. denied) (mem. op.). Smith’s attending physician at the hospital, in
addition to attributing her death to cardiac arrest, made diagnoses of unspecified
dementia without behavioral disturbance, essential hypertension, hypotension,
hypolipidemia, unspecified, anemia, unspecified, and a personal history of TIA.
Irwin Korngut, M.D., an expert witness designated by appellees, testified that the
emergency physicians found no evidence to suggest that Smith was septic at the time
of her death and did not list sepsis as a diagnosis. Dr. Korngut further testified that
Smith’s anemia, her known coronary disease, or internal bleeding could have caused
cardiac arrest.
Finally, Dr. Gupta admitted that he could not testify to a reasonable degree of
medical probability that Smith had a UTI or C. diff or that they had progressed into
urosepsis or fulminant colitis:
Q. You cannot testify to a reasonable medical probability that Ms.
Smith suffered from a C. diff infection on April 12, 2019,
correct?
A. Correct.
Q. You cannot testify to a reasonable medical probability that a C.
diff infection caused fulminant colitis on April 12, 2019, correct?
–13–
A. Correct.
Q. Now, you also cannot testify to a reasonable medical probability
that Ms. Smith suffered from a urinary tract infection on April
12, 2019, correct?
A. Correct.
Q. You cannot testify to a reasonable medical probability that any
act or omission on the part of any defendant caused a C. diff
infection on April 12, 2019 because one might not have existed,
correct?
A. Correct.
....
Q. You cannot testify to a reasonable medical probability of any act
or omission on the part of any defendant caused fulminant colitis
on April 12, 2019, correct?
A. By itself, correct.
Q. You cannot testify to a reasonable medical probability that any
act or omission on the part of any defendant caused a UTI on
April 12, 2019, correct?
A. In case she did not have a UTI, correct.
Q. You cannot testify to a reasonable degree of medical probability
that any act or omission on the part of any defendant caused Ms.
Smith to suffer from urosepsis on April 12, 2019, correct?
A. In case there was no urosepsis.
Considering this testimony, as well as the other evidence before the trial court, we
conclude that the trial court did not abuse its discretion in finding Dr. Gupta’s
opinions as to the causation of Smith’s death unreliable and excluding them.
–14–
In his report and deposition testimony, however, Dr. Gupta also offered
opinions regarding MHRC’s standard of care, breach, and causation related to
Smith’s initial March 2019 hospitalization, and appellees’ motion to exclude did not
address those opinions. Accordingly, we must conclude that the trial court abused
its discretion to the extent its order excluded “any expert testimony” by Dr. Gupta
“for all purposes.”
2. Summary Judgment
Appellees moved for no-evidence summary judgment, asserting, as they did
in their motion to exclude, that there was no evidence of proximate cause with
respect to Smith’s death. Because the trial court did not abuse its discretion in
excluding evidence of Dr. Gupta’s opinions as to the causation of Smith’s death,4
appellant lacked any expert evidence to raise a fact issue on proximate cause and,
therefore, did not meet his burden to produce more than a scintilla of evidence to
show that appellees’ negligence caused Smith’s death. See TEX. R. CIV. P. 166a(i).
Accordingly, we must conclude that the trial court properly granted no-evidence
summary judgment in favor of appellees on appellant’s wrongful death claim. See
Wakefield v. Pinnacle Anesthesia Consultants, P.A., No. 06-17-00056-CV, 2018
4
Even had the trial court abused its discretion in excluding Dr. Gupta’s opinions, we could not have
considered his expert report as summary judgment evidence. See Gomez v. Sani, No. 05-20-00201-CV,
2023 WL 370179, at *5 n.4 (Tex. App.—Dallas Jan. 24, 2023, no pet.) (mem. op.) (citing Kolb v.
Scarbrough, No. 01-14-00671-CV, 2015 WL 1408780, at *4 (Tex. App.—Houston [1st Dist.] Mar. 26,
2015, no pet.) (mem. op.) (unsworn expert report is incompetent summary-judgment evidence)).
–15–
WL 1734984, at *14 (Tex. App.—Texarkana Apr. 2, 2018, pet. denied) (mem. op.)
(affirming no-evidence summary judgment after determining unreliable expert
evidence on proximate cause was properly excluded). We overrule appellant’s first
issue.
Appellees also moved for (1) no-evidence summary judgment, asserting that
Dr. Gupta’s designation, report, and testimony failed to disclose the standard of care
applicable to Beshir, a breach of the standard of care applicable to Beshir, or that
any breach by Beshir proximately caused injury or damages; and (2) traditional
summary judgment, asserting that affirmative evidence negated any breach by
Beshir. In his second issue, appellant asserts the trial court erred in granting the
summary judgment motion as to his claims against Beshir. Appellant contends,
without citation to the record, that Beshir was “the nurse in charge” of Smith’s care
when “many of those acts and omissions were committed. Thus [Beshir] knows
exactly what the standard of care issues are to him and exactly what Dr. Gupta’s
opinions are as it relates to how those specific standard of care violations were a
proximate cause of damages.” Appellant also points to deposition testimony of fact
witnesses and Dr. Gupta’s general deposition testimony that he includes Beshir in
his criticisms of the MHRC nursing staff and nursing care provided to Smith.
Appellant’s expert disclosure designating Dr. Gupta as an expert sets out his
opinions on the standard of care applicable to MHRC, breaches of the standard of
care by MHRC, and injuries caused to Smith by MHRC’s breach of the standard of
–16–
care. There is no mention of Beshir other than a reference that Dr. Gupta reviewed
Beshir’s deposition testimony. The same is true for Dr. Gupta’s report. Further, Dr.
Gupta testified as follows regarding Beshir:
Q. Do you know who [Beshir] is?
A. I know that he is part of this case or one of the nurses in this case.
Q. Do you know what his title is, what –
A. LVN.
Q. You are looking at something. Did you have to refer to your notes
to identify what his job was?
A. My letter which has his name on it.
Q. Do you know what involvement [Beshir] had in the care or
treatment of Ms. Smith?
A. I believe that he was taking care of her.
Q. Do you know any specific breach of the standard of care that
[Beshir] himself committed in this case?
A. Not himself, but there are some breaches in the standard of care
by the facility as a whole, and he may or may not have been
involved specifically with any of them, but there—as a facility
as a whole, I’m familiar with the breaches of the standard of care
by the facility.
Q. I understand what you are saying, Doctor, but you’re giving
expert testimony. So I need to know whether you have an
opinion that [Beshir] himself breached any standard of care in
this case.
A. No.
–17–
Q. And you have no information or knowledge as to what [Beshir]
did or did not do specifically with regard to Celia Smith; isn’t
that true?
A. Correct.
“To preclude summary judgment in a medical malpractice case, the plaintiff
must offer expert testimony on the essential elements of its claim, including the
standard of care, breach, and causation.” Cunningham v. Columbia/St. David’s
Healthcare Sys., L.P., 185 S.W.3d 7, 10 (Tex. App.—Austin 2005, no pet.); see also
Chester v. El–Ashram, 228 S.W.3d 909, 914 (Tex. App.—Dallas 2007, no pet.)
(“Without expert testimony in a medical malpractice action, there is no issue to
submit to the jury.”). Dr. Gupta’s testimony was the only expert evidence linking
the alleged negligence of appellees to Smith’s injuries, but he failed to link Beshir
to any specific act or omission that was the proximate cause of Smith’s injuries;
indeed, he admitted that he had no information regarding what Beshir “did or did not
do” with regard to Smith and had no opinion as to whether Beshir breached any
standard of care. Accordingly, we conclude that appellees conclusively disproved
an essential element of appellant’s claims against Beshir and, therefore, the trial
court did not err in granting appellees’ traditional motion for summary judgment.
We overrule appellant’s second issue.
In a third issue, appellant contends that appellees waived their complaint that
Dr. Gupta was not qualified to testify as to Beshir’s standard of care. Having
concluded for other reasons that the trial court properly granted traditional summary
–18–
judgment in Beshir’s favor, we need not address appellant’s third issue, which relates
to appellees’ no-evidence summary judgment motion. See Hansen, 525 S.W.3d at
680 (when trial court does not specify grounds on which it granted summary
judgment motion, we must affirm if any grounds asserted in motion are meritorious);
Regency Dev. & Constr. Servs., 2019 WL 4051831, at *4 (when court is required to
affirm traditional summary judgment, it need only address the traditional grounds).
3. Survival Action
In his fourth issue, appellant asserts that the trial court erred in granting relief
not requested in appellees’ summary judgment motion. Specifically, appellant
contends that the trial court improperly entered a final summary judgment because
appellees’ motion failed to address appellant’s survival action on behalf of Smith’s
estate to recover for injuries she suffered prior to her death. We agree in part.
An order issued without a conventional trial on the merits is final if it clearly
and unequivocally states that it finally disposes of all claims and all parties, “even if
review of the record would undermine finality.” See Bella Palma, LLC v. Young,
601 S.W.3d 799, 801 (Tex. 2020) (per curiam). When a defendant moves for
summary judgment on only one or some of the claims asserted, and the trial court
grants the motion and orders that the plaintiff take nothing, the judgment is
erroneous, but final. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001)
(per curiam); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).
–19–
Here, the trial court’s order granting appellees’ summary judgment motion
states that the motion “is in all things” granted and orders that appellant “shall take
nothing by his claims against” appellees. The order constitutes a final judgment.
See Lehmann, 39 S.W.3d at 200; e.g., Texas Integrated Conveyor Sys., Inc. v.
Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 362 (Tex. App.—Dallas 2009,
pet. denied) (order granting summary judgment stating, in part, “that [plaintiff] take
nothing against [defendants] by its suit” was final).
A wrongful death action is a cause of action that seeks recovery for negligent
conduct that causes a death. Cunningham v. Haroona, 382 S.W.3d 492, 508 (Tex.
App.—Fort Worth 2012, pet. denied); see TEX. CIV. PRAC. & REM. CODE ANN. §
71.002. The damages recoverable in a wrongful death claim are for the exclusive
benefit of defined statutory beneficiaries of a deceased person to compensate them
for personal loss. Cunningham, 382 S.W.3d at 508. A survival action is a personal
injury action that “survives to and in favor of the heirs, legal representatives, and
estate of the injured person.” Id. at 507 (quoting TEX. CIV. PRAC. & REM. CODE §
71.021). “Any recovery flows to those who would have received it had the decedent
obtained the recovery immediately prior to her death—that is, her heirs, legal
representatives, and estate.” Id. Survival actions and wrongful death actions are
separate and distinct causes of action. Landers v. B.F. Goodrich Co., 369 S.W.2d
33, 35 (Tex. 1963); e.g., Cunningham, 382 S.W.2d at 508 (“If there was evidence
that negligence of [the defendant doctor] proximately caused injury to [the decedent]
–20–
that did not result in her death, the [plaintiffs] were entitled to separate submission
of liability and damage questions for the survival action not conditioned on negative
findings regarding the wrongful death action.”).
Appellant’s second amended petition states a survival claim, alleging that
appellees’ negligence proximately caused injury to Smith prior to her death.
Specifically, appellant alleges that, based on a reasonable degree of medical
probability, MHRC breached its standard of care by continuing Coumadin treatment
without properly monitoring Smith’s PT/INR levels and reporting an incorrect
PT/INR was a proximate cause of her “significant epistaxis on March 28, 2019
which was a result of her being dangerously over coagulated” and her need for
prolonged care in the hospital’s intensive care unit.
Appellees’ traditional summary judgment motion addressed both appellant’s
wrongful death claim and survival claim against Beshir; appellees sought summary
judgment as to all claims against Beshir because, in part, there was no evidence of
breach. However, with respect to appellant’s claims against MHRC, appellees’
summary judgment motion argued only that appellant failed to establish that
appellees’ negligence proximately caused Smith’s death.
Because appellees did not move for summary judgment on appellant’s
survival action against MHRC to recover for the alleged negligence that caused
injury to Smith prior to her death, we conclude the trial court’s order erroneously
–21–
granted more relief than appellees requested. See Lehmann, 39 S.W.3d at 200.
Accordingly, we sustain appellant’s fourth issue in part.
Conclusion
We affirm the trial court’s Order Granting Defendant’s Motion for Summary
Judgment in part and reverse in part. We affirm the order to the extent that it grants
no-evidence summary judgment in appellees’ favor on appellant’s wrongful death
claim and traditional summary judgment in Beshir’s favor on appellant’s survival
claim. We reverse the order to the extent it grants no-evidence summary judgment
on appellant’s survival claim. We also reverse the trial court’s order excluding Dr.
Gupta’s testimony to the extent it excluded testimony on MHRC’s standard of care,
breach, and causation related to Smith’s initial March 2019 hospitalization and
appellant’s survival claim. We remand the case to the trial court for further
proceedings in accordance with this opinion.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
221140F.P05
–22–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARCUS SMITH, On Appeal from the 14th Judicial
INDIVIDUALLY AND AS District Court, Dallas County, Texas
REPRESENTATIVE OF THE Trial Court Cause No. DC-21-02258.
ESTATE OF CELIA B. SMITH, Opinion delivered by Chief Justice
DECEASED, Appellant Burns. Justices Molberg and Carlyle
participating.
No. 05-22-01140-CV V.
NEXION HEALTH AT
MCKINNEY, INC. D/B/A
MCKINNEY HEALTHCARE AND
REHABILITATION CENTER AND
MENUR BESHIR, LVN, Appellees
In accordance with this Court’s opinion of this date, the trial court’s Order
Granting Defendants’ Motion for Summary Judgment is AFFIRMED in part and
REVERSED in part. We REVERSE that portion of the trial court’s order granting
summary judgment in favor of appellee Nexion Health at McKinney, Inc. d/b/a
McKinney Healthcare and Rehabilitation Center on appellant’s survival claim
against it. In all other respects, the order is AFFIRMED.
The trial court’s Order Excluding Testimony of Summit Gupta, M.D. is
AFFIRMED in part and REVERSED in part. We REVERSE the trial court’s order
to the extent that it excludes Dr. Gupta’s testimony on appellee Nexion Health at
McKinney, Inc. d/b/a McKinney Healthcare and Rehabilitation Center’s standard of
care, breach, and causation related to appellant’s survival claim against it. In all
other respects, the order is AFFIRMED.
–23–
We REMAND this cause to the trial court for further proceedings consistent
with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 11th day of August 2023.
–24–