the Estate of Theodore Jensen, Larry Jensen, and Doris Jensen v. William Restrepo

NUMBER 13-99-017-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

THE ESTATE OF THEODORE

JENSEN, LARRY JENSEN AND

DORIS JENSEN Appellants,

v.

WILLIAM RESTREPO, Appellee.

____________________________________________________________________

On appeal from the 206th District Court of Hidalgo County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Yañez, and Seerden⁽¹⁾ Opinion by Justice Yañez

Appellants, Larry Jensen, Doris Jensen, and the Estate of Theodore Jensen ("the Jensens"), appeal from a summary judgment in favor of appellee, William Restrepo, M.D., in a medical malpractice action. By a single issue, appellants contend the trial court erred in granting appellee's no-evidence motion for summary judgment. We affirm.

On January 16, 1994, Theodore Jensen became ill and was taken to McAllen Medical Center. The admitting physician was Jensen's primary treating physician, Dr. Luis Arango. Arango had treated Jensen on several other occasions and knew that Jensen had Parkinson's disease and had been taking the drug Sinemet to control the disease. Although Jensen's family brought to the hospital a list of medications that he was taking at home, including Sinemet, Arango's admission orders did not represcribe Sinemet.

Arango arranged for Drs. Ruy Mireles-Quintanilla ("Mireles"), a neurologist, and Restrepo, a nephrologist,⁽²⁾ to see Jensen as consulting physicians. Restrepo first saw Jensen on January 17, 1994. Based on a physical examination of Jensen and a review of his pertinent medical records and history, Restrepo ordered several laboratory tests. He monitored and evaluated Jensen's kidney condition over the next two days, and last saw Jensen on January 19, 1994.⁽³⁾ At that time, he concluded Jensen's kidney status had stabilized sufficiently that further daily follow-up by a nephrologist was not needed. Restrepo noted on the chart that he would see Jensen only on an as-needed, or "PRN," basis.

On January 19, 1994, Arango called one of the nurses at the hospital, told her he was leaving town, and that the staff should contact Restrepo if anything happened to Jensen during his absence.⁽⁴⁾ Arango did not return until January 24th. Mireles testified by deposition that he saw Jensen on January 19th and again on the 20th. On the 20th, Mireles noted in the file that he would "keep [Jensen] on Sinemet," and signed off the case. On January 22, 1994, Jensen's son, Larry, complained to the nursing staff that his father's condition had significantly deteriorated. It was discovered that no doctor was following Jensen. That same day, Jensen was seen by Dr. Savita Koolwal, another nephrologist, and Mireles. Larry told Mireles that his father had not been receiving Sinemet, and Mireles immediately ordered the prescription re-instituted. Jensen's condition, however, continued to deteriorate and he died in the hospital on February 6, 1994.

On March 29, 1996, the Jensens filed suit against the hospital and five physicians.⁽⁵⁾ Restrepo moved for summary judgment under Texas Rule of Civil Procedure 166a(c) and 166a(i). See Tex. R. Civ. P. 166a(c) and (i). He argued that the alleged departure from the standard of care --- his failure to notice that Jensen was not receiving his home medication and failure to so notify Arango --- did not proximately cause Jensen's death because it is speculation to say whether Arango would have altered his treatment of Jensen had he been aware of the information. In response, the Jensens argued that if Restrepo had continued to monitor Jensen's condition during Arango's absence (which is what Arango testified by deposition that he expected), Restrepo would have assumed the duties of an attending doctor, would have checked the medication charts, and would have noticed that despite Mireles's notation to continue Jensen on Sinemet, the medication had neither been prescribed nor administered. The trial court, without specifying rule 166a(c) or 166a(i) grounds, granted Restrepo's motion, severed the claims against him, and ruled that the Jensens take nothing on their claims against him. This appeal followed.

Standard of Review

In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to the required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Noriega v. Mireles, 925 S.W.2d 261, 266 (Tex. App.--Corpus Christi 1996, writ denied). In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; Noriega, 925 S.W.2d at 266. When the defendant is the movant and submits summary judgment evidence disproving at least one essential element of each of the plaintiff's causes of action, then summary judgment should be granted. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

When a motion is presented under Texas Rule of Civil Procedure 166a(i) asserting there is no evidence of one or more essential elements of the nonmovant's claims upon which the nonmovant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.--Dallas 2000, no pet.); Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432-33 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Rather, the burden shifts to the nonmovant to present enough evidence to be entitled to a trial, i.e., evidence that raises a genuine fact issue on the challenged elements. See Tex. R. Civ. P. 166a cmt. If the nonmovant is unable to provide enough evidence, the trial judge must grant the motion. See Lampasas, 988 S.W.2d at 433.

A "no-evidence" summary judgment granted under rule 166a(i) is essentially a pre-trial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.--Corpus Christi 1999, pet. denied); Moore v. Kmart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied); Moritz v. Bueche, 980 S.W.2d 849, 853 (Tex. App.--San Antonio 1998, pet. denied). We review the evidence in the light most favorable to the party against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Whalen v. Condominium Consulting and Mgmt. Servs., Inc., 13 S.W.3d 444, 446 (Tex. App.--Corpus Christi 2000, pet. denied); Zapata, 997 S.W.2d at 747. A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Zapata, 997 S.W.2d at 747. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711; Zapata, 997 S.W.2d at 747.

If a summary judgment is granted generally, without specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)); Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.--Corpus Christi 1995, writ denied).

Discussion

The elements of a medical malpractice cause of action are: (1) the duty of the physician to act according to a certain standard; (2) a breach of that standard of care; (3) an injury; and (4) a causal connection between the breach and the injury. Zapata, 997 S.W.2d at 747; Silvas v. Ghiatas, 954 S.W.2d 50, 52 (Tex. App.--San Antonio 1997, writ denied). In a medical malpractice case, the plaintiff must prove by competent medical expert testimony that the defendant's negligence proximately caused the plaintiff's injury. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988); Klug v. Ramirez, 830 S.W.2d 801, 804 (Tex. App.--Corpus Christi 1992, no writ). Both establishing summary judgment and precluding summary judgment are dependent upon expert testimony. Martin v. Durden, 965 S.W.2d 562, 564 (Tex. App.--Houston [14th Dist.] 1997, writ denied). On the proximate cause element, the plaintiff must establish a causal connection beyond the point of conjecture; proof of mere possibilities will not support the submission of an issue to the jury. Duff, 751 S.W.2d at 176; Klug, 830 S.W.2d at 804.

Restrepo moved for summary judgment solely on the basis that there are no genuine issues of material fact regarding causation, an essential element of the Jensens' cause of action. In support of his motion, Restrepo attached his affidavit, which stated that in his expert opinion, based upon a reasonable degree of medical probability, nothing he did or failed to do caused or contributed to Jensen's death. In response, the Jensens contend that their summary judgment evidence⁽⁶⁾ raised a genuine fact issue as to whether Restrepo should have continued to follow Jensen during Arango's absence.⁽⁷⁾

Because Restrepo's motion for summary judgment challenged the Jensens' evidence regarding the element of causation, and accordingly, the Jensens' summary judgment evidence sought to raise a fact issue solely and specifically as to whether Restrepo should have followed Jensen's progress, we express no opinion as to whether Restrepo's alleged failure to notice that Jensen was not receiving Sinemet fell below the standard of care for a consulting physician. Therefore, the only question before us is whether the Jensens' summary judgment evidence constitutes more than a "scintilla" of evidence raising a genuine issue of material fact regarding whether Restrepo should have followed Jensen's progress during Arango's absence.

The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). The test is whether the negligent act or omission was a substantial factor in bringing about injury, without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Cause in fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995); Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968). "Thus where the evidence most favorable to the plaintiff develops more than one equally probable cause, for one or more of which defendant is not responsible, the plaintiff has failed to sustain his burden of proof." Klug, 830 S.W.2d at 804 (quoting 13 A.L.R. 2d 22).

The affidavit of an interested expert witness, such as a defendant doctor, can support summary judgment if the subject matter is such that a trier of fact would be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted, even if the expert is a party to the suit. See Tex. R. Civ. P. 166a(c); Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Boren v. Bullen, 972 S.W.2d 863, 864-65 (Tex. App.--Corpus Christi 1998, no pet.); Noriega, 925 S.W.2d at 266; Perez v. Cueto, 908 S.W.2d 29, 31 (Tex. App.--Houston [14th Dist.] 1995, no writ). If an interested expert witness presents legally sufficient evidence in support of a motion for summary judgment, the opposing party must produce other expert testimony to controvert the claims. Anderson, 808 S.W.2d at 55. Lay testimony is insufficient to refute an expert's testimony. Id.

The Texas Supreme Court has defined the phrase "could have been readily controverted" to mean the testimony at issue is of a nature which can be effectively countered by opposing evidence. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). In general, issues such as intent and knowledge are the kind of issues the supreme court holds as exemplifying matters that cannot be readily controverted. See Allied Chemical v. DeHaven, 752 S.W.2d 155, 158 (Tex. App.--Houston [14th Dist.] 1988, writ denied) (self-serving statements of interested parties, testifying as to what they knew or intended, do not meet the standards for summary judgment).

In support of their argument that the summary judgment evidence raises a fact issue as to whether Restrepo should have continued to follow Jensen's progress, the Jensens cite Arango's testimony. Viewing the evidence in the light most favorable to the Jensens, Arango testified that he expected Restrepo to continue to follow Jensen's progress because in prior consultations with other patients, Restrepo had followed such a practice. Arango testified he did not personally ask Restrepo to follow Jensen's condition, but instead, told a nurse to contact Restrepo if anything happened to Jensen. Arango testified as follows:

Q: All right. Why did you assume that he [Restrepo] would continue to follow this patient?

A: Because the condition of the patient was --- you know, his condition was not normalized. He still had problems.

* * * *

Q: Okay. Did you expect Doctor Restrepo to deal with any other particular matters that might arise with this patient, things outside the area of nephrology, for instance?

A: I didn't see why not.⁽⁸⁾

Q: Okay. All right. Now were you relying on the nurses to contact Doctor Restrepo to tell him about your desire for him to follow the patient during his absence?

A: Yes.

Q: Okay. And, therefore, I mean, you would have had no reason to call Doctor Restrepo, yourself, you would ask the nurses to do that for you; isn't that right?

A: Not quite exactly. Every patient that I had followed by him pretty much before have been seen until the time of dismissal.

* * * *

Q: Okay. And that's really all I was trying to find out, that you did not call Doctor Restrepo, personally, yourself, and ask him to follow a patient during your absence?

A: That was one of my --- you know the pattern of these consultations before.

* * * *

Q: You did not call him, personally, and ask him to ---

A: I didn't feel the need to because he had in the past followed the patient until the last day.

The Jensens contend that "[w]hether or not Dr. Arango's expectation as to what Dr. Restrepo would do in Arango's absence is reasonable should be left to the trier of fact." We disagree. The Jensens presented no summary judgment evidence that Restrepo was asked or told by anyone that he was expected to assume the duties of Jensen's attending physician during Arango's absence. Arango testified he did not ask Restrepo to follow Jensen's condition because he "didn't feel the need" to do so. Viewing the evidence in the light most favorable to the Jensens, Arango's testimony establishes only that he "assumed" and "expected" Restrepo to follow Jensen's progress. We conclude Arango's testimony is of a nature which cannot be readily controverted, and is therefore incapable of precluding a summary judgment. See DeHaven, 752 S.W.2d 155 at 158.

The Jensens also cite as summary judgment evidence the affidavit, report, and deposition testimony of Dr. Laurie Barclay, a board-certified neurologist. In her affidavit, Barclay stated that "a consulting physician such as Dr. Restrepo should always ascertain which medications have been prescribed for the patient, what the dosages are and whether or not the patient is receiving the medications in their proper dosages." She also stated that in her opinion,

Dr. Restrepo was practicing below the standard of care as a consulting physician in that he failed to review the patient's chart to ascertain whether he was actually getting the medications he assumed he was getting and in that he failed to order the missing medication when he first saw the patient on January 17, 1996.

In her deposition,⁽⁹⁾ she testifed that her only criticisms of Restrepo were that he failed to notice Jensen was not receiving Sinemet and thus failed to notify Arango of the situation. Barclay testified as follows:

Q: Is the fact that Dr. Restrepo did not notice, I guess for lack of a better word, that Sinemet was not being given and bring that to the attention of Dr. Arango, is that your sole criticism of Dr. Restrepo?

A: Yes.

Q: Do you have --- you have no criticism whatsoever as far as this who should have been following the patient in a certain time? That criticism is not a criticism of Dr. Restrepo?

A: Well, I think someone should have been following the patient. And I don't personally have the knowledge of, you know, whether the phone call was made or who was spoken to or who wasn't spoken to. Assuming that Dr. Restrepo did not know that he was to be following those patients or that that was Dr. Arango's assumption, then I have no criticism of Dr. Restrepo in that respect.

Barclay also testified that even if Restrepo had noticed that Jensen was not receiving Sinemet and had so informed Arango, it is speculation to say whether it would have made any difference to the outcome. Barclay testified as follows:

Q: All right. Let's suppose that Dr. Restrepo had brought to Dr. Arango's attention that the Sinemet was not being given. Would you agree with me that we don't know what Dr. Arango would have done had that scenario played out?

A: Yes.

Q: Would you agree with me that it would be pure speculation on your part to try to make an --- to speculate as to what Dr. Arango would have done had Dr. Restrepo brought this to his attention?

A: Yes.

Q: Would you agree with me that had Dr. Restrepo brought this to [sic] attention, it very well would have made no difference in Dr. Arango's management of the patient?

A: It may not.

Q: Would you agree with me that if Dr. Restrepo had brought this to the attention of Dr. Arango, that it very well may not have played any factor in this patient's clinical progression?

A: Had Dr. Arango not changed his mind, no it wouldn't have made any difference.

Q: We don't know what he would have done. We've agreed that that could call for speculation.

A: Right.

We conclude that Barclay's testimony established that it is speculation to say that any act or omission by Restrepo (including his alleged failure to notice that Jensen was not receiving Sinemet and failure to notify Arango) would have made a difference in the outcome. We therefore conclude that Barclay's testimony is insufficient to establish a causal connection between Restrepo's conduct and the Jensens' injuries. See Klug, 830 S.W.2d at 804.

We conclude that the Jensens' summary judgment proof was insufficient to create a fact issue as to whether Restrepo's failure to follow Jensen's progress proximately caused Jensen's death. Accordingly, the trial court did not err in granting summary judgment in Restrepo's favor. We overrule the Jensens' issue and AFFIRM the judgment of the trial court.

LINDA REYNA YAÑEZ Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

8th day of February, 2001.

1. Retired Chief Justice Robert Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. Nephrology is a branch of medicine concerned with the kidneys. Merriam-Webster's Collegiate Dictionary 799 (10th ed. 1996).

3. Restrepo contends he last saw Jensen on January 18, 1994. Because evidence favorable to the non-movant will be taken as true, see Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985), we accept January 19th, the date asserted by the Jensens, as the day Restrepo last saw Jensen.

4. Arango testified at his deposition that he relied on the hospital nursing staff to contact Restrepo. He testified he did not "feel the need" to contact Restrepo personally because "in the past [Restrepo] followed the patient until the last day." A report submitted by the Jensens' expert, Dr. Laurie Barclay, in support of the Jensens' response to Restrepo's motion, included a summary of Jensen's hospital records, which reflect a telephone order from Dr. Arango on January 19, 1994, indicating that Restrepo was to follow Jensen until Arango's return.

5. A settlement was reached with McAllen Medical Center. Two physicians were later non-suited, leaving Drs. Arango, Mireles, and Restrepo as defendants.

6. The Jensens designated as summary judgment evidence the affidavit and report of their expert witness, Dr. Laurie Barclay, a board certified neurologist, and the entire depositions of Barclay, Larry Jensen, Arango, Mireles, Restrepo, and Joseph Jankovic, a neurologist.

7. In their response to Restrepo's motion for summary judgment, the Jensens state that:

The entire question as to Dr. Restrepo depends on whether he or Dr. Arango is to be believed. If the jury does not believe Dr. Arango, then they will presumably find that Dr. Restrepo was not at fault because he last saw the patient before the neurologist, Dr. Mireles-Quintanilla wrote that the Sinemet should be continued. If the jury believes Dr. Arango that, based upon things that had had [sic] happened in the past with Dr. Restrepo, he expected Dr. Restrepo to continue seeing Mr. Jensen, then they could find that Dr. Restrepo failed to cover Dr. Arango and thus contributed to the failure of Mr. Jensen to get his medication and his subsequent deterioration and death. [second emphasis added].

Similarly, in their appellate brief, the Jensens concede that:

if Dr. Restrepo was correct in signing off on the case after seeing Mr. Jensen on the [sic] January 19, and if there was no implied agreement between Dr. Restrepo and Dr. Arango that should have led Dr. Restrepo to follow Mr. Jensen's situation while Dr. Arango was out of town, then Dr. Restrepo is off the hook.

8. In the corrections to his deposition, Arango later changed this response to "Yes, sir." A witness may change responses as reflected in a deposition transcript in compliance with the requirements set forth in Texas Rule of Civil Procedure 203.1(b). See Tex. R. Civ. P. 203.1(b). Arango indicated that the reason for the change was "to clarify the record."

9. Barclay's affidavit is dated November 13, 1996. Her deposition was taken approximately a year and a half later, on April 24, 1998.