Donita Rowan and James Niese v. Carmelita Escalante, M.D., E. Edmund Kim, M.D., Edgardo Rivera, M.D., and Franklin C. Wong, M.D.

Affirmed in Part and Reversed and Remanded in Part, and Majority and Dissenting Opinions filed January 22, 2008

Affirmed in Part and Reversed and Remanded in Part, and Majority and Dissenting Opinions filed January 22, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-05-00828-CV

NO. 14-06-00197-CV

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CARMELITA ESCALANTE, M. D., E. EDMUND KIM, M. D., EDGARDO RIVERA, M. D., AND FRANKLIN C. WONG, M. D., Appellants

V.

DONITA ROWAN AND JAMES NIESE, Appellees

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DONITA ROWAN AND JAMES NIESE, Appellants

V.

CARMELITA ESCALANTE, M. D., E. EDMUND KIM, M. D., EDGARDO RIVERA, M. D., AND FRANKLIN C. WONG, M. D., Appellees

On Appeal from the 164^th District Court

Harris County, Texas

Trial Court Cause No. 04-64492

D I S S E N T I N G   O P I N I O N         

While I agree with most of the majority=s opinion, because I disagree with the

majority=s ultimate conclusion that the trial court erred when it granted the doctors= motion for summary judgment, I respectfully dissent.

In their second and third issues, Rowan and Niese contend the trial court erred in granting the doctors= motion for summary judgment as the motion was not addressed to their causes of action. Because I believe the Loss of Chance Doctrine bars any recovery by Rowan and Niese, I would overrule both issues and affirm the trial court=s summary judgment.

In their second amended petition, Rowan and Niese alleged medical malpractice causes of action against the doctors.  To recover on a medical malpractice claim, a plaintiff must establish the following essential elements: (1) a legally cognizable duty requiring the health care provider to conform to a certain standard of care or conduct; (2) a breach of that standard; (3) injury; and (4) a reasonably close causal connection between the breach of the standard and the injury suffered by the plaintiff.  Dubose v. Worker=s Medical, P. A., 117 S.W.3d 916, 919 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  In Kramer v. Lewisville Memorial Hospital, 858 S.W.2d 397, 407 (Tex. 1993), the Texas Supreme Court held that Texas does not recognize a common law cause of action for lost chance of survival in a medical malpractice case.  In their motion for summary judgment, the doctors attacked the causation element of Rowan and Niese=s medical malpractice actions.  Specifically, the doctors argued Rowan and Niese=s causes of action were barred because Texas does not recognize the loss of chance doctrine.

In a medical malpractice case, plaintiffs are required to show evidence of a reasonable medical probability that their injuries were proximately caused by the negligence of one or more defendants.  Park Place Hosp. v. Milo, 909 S.W.2d 508, 511 (Tex. 1995).  The ultimate standard of proof on the causation issue is whether, by a preponderance of the evidence, the negligent act or omission is 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.  The effect of this requirement is to bar recovery where the defendant=s negligence deprived the plaintiff of only a fifty percent or less chance of avoiding the ultimate harm.  Id.  A[W]here pre-existing illnesses or injuries have made a patient=s chance of avoiding the ultimate harm improbable even before the allegedly negligent conduct occurs B i.e., the patient would die or suffer impairment anywayB the application of these traditional causation principles will totally bar recovery, even if such alleged negligence deprived the patient of a chance of avoiding the harm.@  Id. (emphasis added).  AThere is no liability for negligent medical treatment >that decreases a patient=s chance of avoiding death or other medical conditions in cases where the adverse result probably would have occurred anyway.=@  Milo, 909 S.W.2d at 511 (quoting Kramer, 858 S.W.2d at 398).  The Texas Supreme Court Ahas spoken with great clarity on the loss of chance rule, leaving no room for disagreement: recovery in a medical malpractice case cannot be had if, at the time of the alleged negligence, the patient had a pre-existing condition from which the chance of survival was [fifty] percent or less.@  Columbia Rio Grande Regional Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 863 (Tex. App.CCorpus Christi 2006, pet. granted).  The loss of chance doctrine is a bar to recovery due to a lack of causation, and is not an affirmative defense.  Hodgkins v. Bryan, 99 S.W.3d 669, 675 (Tex. App.CHouston [14th Dist.] 2003, no pet.).

Because the summary judgment evidence submitted by the doctors conclusively established that Rowan had metastatic cancer with a zero percent chance of cure, a five year survival rate of fifteen to twenty percent at the time of diagnosis, and a median survival of two years, I would hold the trial court properly granted the doctors= motion for summary judgment.^[1]

Rowan and Niese=s assertion that they were not seeking damages for loss of chance should not change this result.  Regardless of whether Rowan and Niese plead a cause of action for loss of chance or, in some metaphysical sense,  affirmatively sought only limited damages for degradation or diminishment of quality of life for the time period between the alleged negligent acts or inactions and the time when the recurrence of Rowan=s cancer was diagnosed, they cannot establish proximate cause for any damages arising out of the doctors= alleged negligence unless they can establish that Rowan had a greater than fifty percent chance of survival had the malpractice not occurred.  Hodgkins, 99 S.W.3d at 674.  The uncontroverted summary judgment evidence established that once Rowan=s cancer recurred, an event she does not allege was caused by any acts or omissions of the doctors, she had a zero percent chance of cure.  The exact type of damages sought by Rowan and Niese is of no moment.  Rowan had a chance of survival of less than a fifty percent at the time her cancer recurred.  Because Texas does not recognize a cause of action for loss of chance,  their recovery is barred.

The majority, as well as Rowan and Niese, cite the Beaumont Court of Appeals= opinion in Parrot v. Caskey, 873 S.W.2d 142, 151 (Tex. App.CBeaumont 1994, no writ), in support of their contention  that Rowan and Niese=s claims are not barred by the loss of chance doctrine.  In Parrot, a delay in diagnosis case like the one at bar, the Beaumont Court of Appeals held that the plaintiffs could recover personal injury damages suffered during the time period between the alleged negligent failure to diagnose Parrot=s breast cancer and the date that her disease was properly diagnosed.  Id.   As a threshold matter,  Parrot does not represent binding authority on this court.  However, after a principal, rule, or proposition of law has been squarely decided by the Texas Supreme Court, that decision is accepted as binding authority on lower courts.  Edwards v. Kaye, 9 S.W.3d 310, 313 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).  I would choose not to follow the Beaumont court=s opinion in Parrot, a no writ case, because it is directly contrary to the clear holding from the Texas Supreme Court that, when a pre-existing illness or injury has made a patient=s chance of recovery fifty percent or less, meaning the plaintiff would die or suffer impairment anyway, the application of traditional causation principles totally bars recovery by that plaintiff, even if the alleged negligence deprived the plaintiff of a chance of avoiding the harm.  Kramer, 858 S.W.2d at 400.

In support of their decision to reverse the trial court=s summary judgment, the majority also cites this court=s opinion in Hodgkins. The majority= reliance on Hodgkins is misplaced.  In Hodgkins we affirmed the trial court=s granting of a summary judgment based on the loss of chance doctrine even though the plaintiff argued, as Rowan and Niese do here, that he was not seeking recovery for the lost chance of survival.  Hodgkins, 99 S.W.3d at 674.  In rejecting the plaintiff=s argument, we stated: A[r]egardless of whether appellant did not specifically plead a lost chance of survival cause of action, he cannot show proximate cause unless he presents more than a scintilla of evidence that Ms. Hodgkins had a greater than fifty percent chance of survival had the malpractice not occurred.@ Id.  Far from recognizing a cause of action under Parrot, we distinguished Parrot because the plaintiff in Hodgkins did not produce any evidence establishing Awhat injury, if any, Ms. Hodgkins suffered from the date the cancer should have been diagnosed to the date it was actually diagnosed and how that injury was qualitatively different from the injury resulting from the lung cancer.@  Id. at 675.  By resolving the plaintiff=s issue on appeal on evidentiary grounds, we never reached the substantive issue of whether such a limited cause of action was possible.

Finally, because I would  affirm the trial court=s granting of the doctors= motion for summary judgment, and that would dispose of all issues in the lawsuit between Rowan and Niese on the one hand and the doctors on the other, I would hold the doctors= interlocutory appeal is moot.

/s/      John S. Anderson

Justice

Judgment rendered and Majority and Dissenting Opinions filed January 22, 2008.

Panel consists of Justices Anderson, Frost, and Senior Justice Mirabal.^*(J., Mirabal, majority.)

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^[1]  The trial court struck, as conclusory, both affidavits prepared by Rowan and Niese=s medical doctor experts filed in response to the doctors= motion for summary judgment. Rowan and Niese have not challenged this action by the trial court in this appeal.

^*  Senior Justice Margaret G. Mirabal sitting by assignment.