Frankie Marie Miller, Individually and as Representative of the Estate of T.J. Miller v. John B. Mullen, M.D., and Titus Regional Medical Center
06-15-00059-CV
| Tex. App. | Dec 2, 2015Background
- On April 22, 2011, T.J. Miller suffered severe neck pain after an epidural cervical steroid injection (ECSI) and returned to Titus Regional Medical Center; he was bleeding internally from an arterial nick during the ECSI.
- Dr. John B. Mullen treated Miller in the ER; he ordered an EKG (which was normal) and then, at 11:15 a.m., directed administration of 325 mg aspirin.
- Dr. Mullen knew (from his diagnosis choices and his testimony) that Miller likely had either myocardial infarction or an epidural hematoma, that aspirin inhibits clotting and is contraindicated for bleeding, and that spinal bleeding can cause paralysis.
- Miller developed progressive neurological deficits; MRI showed spinal cord compression from an epidural hematoma; he was emergently transferred, underwent surgery, remained uncontrollably bleeding, became paraplegic, later developed sepsis and died.
- Plaintiff Frankie Marie Miller (individually and as PR of the estate) sued for medical malpractice; the trial court granted defendant Janie Mullen (PR of Dr. Mullen’s estate) traditional and no-evidence summary judgment. Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff produced evidence of wilful and wanton negligence (gross negligence) under Tex. Civ. Prac. & Rem. Code § 74.153 for emergency-care claims | Miller presented expert testimony that ordering aspirin despite a normal EKG and a recent ECSI was an extreme departure from the standard of care and posed a potentially lethal risk; plus Dr. Mullen’s own admissions about the risks show subjective awareness | Mullen argued absence of evidence of conscious indifference; pointed to expert testimony that he performed medically indicated steps and did not intend harm | Court of appeals brief argues plaintiff raised more than a scintilla and created fact issues on both objective (extreme risk) and subjective (awareness/conscious indifference) prongs, so summary judgment was improper |
| Whether plaintiff presented competent evidence of causation (that aspirin proximately caused prolonged bleeding/paralysis) | Plaintiff’s expert opined, based on records and testimony, that aspirin inhibited clotting and, more likely than not, the prolonged bleeding and paralysis would not have occurred but for aspirin | Mullen stressed expert concessions that some patients worsen without aspirin and that exact contribution of aspirin couldn’t be mathematically quantified | Court of appeals brief contends the expert gave a reasonable-medical-probability opinion that aspirin was a substantial factor and but-for cause, creating fact issues to defeat no-evidence and traditional summary judgment |
Key Cases Cited
- City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (limits on expert testimony about another’s state of mind)
- Turner v. Franklin, 325 S.W.3d 771 (Tex. App.—Dallas 2010) (standard for proving gross negligence in emergency-care claims)
- Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex. 2008) (objective element of gross negligence requires extreme degree of risk)
- Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) (gross negligence definition includes subjective awareness and conscious indifference)
- Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (no-evidence / scintilla standard discussion)
- Park Place Hosp. v. Milo, 909 S.W.2d 508 (Tex. 1995) (causation standard in medical malpractice)