Gregory Sage v. James R. Howard, M. D.
465 S.W.3d 398
Tex. App.2015Background
- Plaintiff Gregory Sage (39) had prior left hip replacement and recurrent dislocations; underwent revision surgeries in March and August 2007 and developed MRSA post-op.
- On Oct. 2, 2007 Sage presented to Del Sol ER with severe left hip pain after waking up; Dr. James Howard evaluated him and suspected dislocation or fracture.
- Dr. Howard ordered x-rays (time-stamped before reduction) but did not document seeing a fracture; he proceeded to sedate Sage with propofol and performed hip reduction maneuvers, during which Sage (and his father) reported hearing a crack.
- Subsequent imaging (radiologist report, CT) and orthopedic surgeon Dr. Heydemann identified an upper femur fracture; Sage required surgical fixation.
- Sage sued for medical malpractice alleging Dr. Howard fractured the femur during reduction; Howard moved for both no-evidence and traditional summary judgment, arguing the fracture preexisted the reduction.
- Trial court granted summary judgment (order not specifying basis); the court of appeals reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation: Did Howard cause the femur fracture? | Sage: evidence (expert affidavit, father’s statement, Sage’s testimony) permits inference fracture occurred during ER reduction. | Howard: x-rays (time-stamped before reduction) show fracture preexisted; thus no causation. | Reversed: factual dispute exists whether x-rays were taken pre-reduction; more than scintilla supports causation. |
| No-evidence: Is there more than a scintilla that Howard caused the fracture? | Sage: Dr. Heller’s expert ties the fracture to reduction maneuvers and cites contemporaneous observations (crack, pain). | Howard: expert opinion lacks foundation; witnesses’ lack of memory is no evidence. | Reversed: expert and testimonial evidence create genuine fact issue. |
| Willful and wanton (gross) negligence under §74.153: Did plaintiff show gross negligence? | Sage: Dr. Heller opined Howard failed to get/adequately read x-rays, attempted reduction without ortho consult, made multiple forceful attempts—creating extreme risk and conscious indifference. | Howard: omissions amount at most to ordinary negligence; no evidence of extreme risk or actual awareness. | Reversed in part: evidence sufficient as to failure to obtain/read x-rays and excessive force to raise fact issue on gross (willful and wanton) negligence; not sufficient re: failure to consult ortho. |
| Traditional SJ: Does undisputed evidence conclusively show fracture predated reduction? | Sage: his testimony and father’s affidavit and expert create dispute about timing of x-rays and whether he was awake when plates placed. | Howard: relies on x-ray timestamps and his testimony that he never reduces without x-rays. | Reversed: genuine issue of material fact exists about timing of x-rays; summary judgment improper. |
Key Cases Cited
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (affirm summary judgment if any presented theory meritorious)
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (address no-evidence grounds first when both raised)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (no-evidence motion standard; scintilla rule)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (credit favorable evidence when reviewing no-evidence SJ)
- Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (definition of scintilla/more-than-scintilla evidence)
- Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) (failure to produce more than scintilla is no evidence)
- Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) (reasonable medical probability required for causation in malpractice)
- Turner v. Franklin, 325 S.W.3d 771 (Tex.App.—Dallas 2010) (construing §74.153: willful and wanton negligence equated with gross negligence)
- U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) (gross negligence requires objective and subjective components)
- Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (circumstantial evidence may prove gross negligence; distinction between simple and gross negligence)
- Rankin v. Union Pacific R.R. Co., 319 S.W.3d 58 (Tex.App.—San Antonio 2010) (a witness’s failure to remember is not probative of the event occurring)