Debra Knox, Steven Dunning, Pamela Johnson, and Penny Ortiz, Individually and as Representative of the Estate of Patty Dunning v. Tahir Rana, M.D., North Texas Cancer Center, L.P., and Gainesville Cancer Center, LLC
02-16-00086-CV
Tex. App.Nov 17, 2016Background
- Plaintiffs (children and estate representatives of Patty Dunning) sued Dr. Tahir Rana and affiliated cancer centers for wrongful death based on alleged failure to diagnose/treat metastatic endometrial cancer discovered on a PET scan.
- November 7, 2011 PET report noted a pelvic mass "suspicious for metastatic disease." Plaintiffs contend Dr. Rana did not inform Dunning or promptly pursue follow-up.
- Defendants produced evidence that Dunning was informed the finding was "worrisome" and needed a follow-up PET; Dunning did not obtain follow-up and was later diagnosed with metastatic cancer in October 2012.
- Defendants’ experts testified Dunning’s cancer was already metastatic and terminal by the time she saw Dr. Rana, and that earlier diagnosis/treatment would not have changed the ultimate outcome.
- Plaintiffs’ expert (Dr. Karam) opined earlier confirmation and treatment likely would have prolonged Dunning’s life (months to years) and reduced suffering.
- Trial court granted partial summary judgment for defendants on wrongful death claims (plaintiffs nonsuited survival claims); court of appeals affirmed, holding defendants negated causation as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether partial summary judgment was improper as a matter of law because wrongful death claim should go to jury | Plaintiffs: evidence (Dr. Karam) creates fact issue that earlier diagnosis/treatment would have, to a reasonable medical probability, prolonged life beyond date of death | Defendants: expert proof shows cancer was metastatic and terminal before defendant’s conduct; thus defendants negated causation element | Held: Affirmed — defendants met burden; no competent evidence that negligence caused death (no >50% chance of survival lost) |
| 2. Whether fact issues exist on causation precluding summary judgment | Plaintiffs: testimony and declaration raise genuine dispute that earlier treatment would have altered outcome | Defendants: controverting expert testimony conclusively shows death was not caused by defendant negligence | Held: Affirmed — plaintiffs’ evidence at best shows loss of a less-than-even chance, insufficient under Texas wrongful death law |
| 3. Whether plaintiffs’ expert evidence established reasonable medical probability (>50%) that earlier treatment would have prevented death | Plaintiffs: Dr. Karam opined earlier treatment would probably have prolonged life 1–3 years (reasonable probability) | Defendants: experts testified that at time of alleged negligence, disease was disseminated and survival was not reasonably probable | Held: Affirmed — plaintiffs failed to present expert proof that chance of survival exceeded 50% when negligence occurred; wrongful death claim barred |
Key Cases Cited
- Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397 (Tex. 1993) (Wrongful Death Act permits recovery only for injuries that cause death—not loss of a less-than-even chance of avoiding death)
- Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009) (plaintiff must prove to a reasonable medical probability that negligence caused the injury; preexisting condition with ≤50% survival bars recovery)
- Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) (medical expert testimony typically required to establish causation beyond common knowledge)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary judgment reviewed de novo)
- Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (defendant moving for summary judgment must negate an essential element of plaintiff’s cause of action)