Lead Opinion
OPINION ON REHEARING
Opinion by
We deny appellees’ motion for rehearing. On the Court’s own motion, we withdraw our opinion dated December 31, 2014, and vacate the judgment of that date. This is now the Court’s opinion.
Appellees’ daughter Daniella was born prematurely. Her treating physicians included appellants Enrique N. Ponte Jr., M.D., and Jorge Fabio Llamas-Soforo, M.D. Despite the doctors’ efforts, Daniella eventually went blind in her right eye and lost most of the vision in her left eye. Appellees, acting on Daniella’s behalf, sued Ponte, Llamas, and their employers. The case was tried to a jury, which made findings in appellees’ favor. The trial judge rendered judgment against appellants based on the jury’s findings, reduced by settlement credits. Ponte, Llamas, and their employers appealed. Because appel-lees adduced no non-conclusory evidence of causation, we reverse and render judgment that appellees take nothing.
I. Background
A. Facts
The evidence adduced at trial supported the following facts. Appellee Marcela Bustamante gave birth to Daniella at Del Sol Medical Center in El Paso on May 19, 2005. The admission note describes Dan-iella as weighing 600 grams at birth and as having a “23 week 1 day gestational age.” She was admitted to Del Sol’s neonatal intensive care unit. Appellant Ponte, a neuroneonatologist and an employee of appellant Pediatrix, was medical director of Del Sol’s neonatal ICU. Ponte was Daniel-la’s attending physician while she was in Del Sol’s neonatal ICU.
Daniella suffered from several medical problems related to her premature birth, including seizures, bleeding and inflammation in the brain, and patent ductus arter-iosus, which is a condition involving the blood vessels near her heart that required
Ponte contacted appellant Llamas, an ophthalmologist, and asked him to examine Daniella. Llamas examined Daniella’s eyes on July 4, 2005, and he observed no sign of ROP. Llamas’s note from the examination reflects that there was to be a follow-up examination in four weeks. Llamas examined Daniella again on August 1. During that examination he determined that Daniella had developed ROP, and he recommended surgical treatment of the ROP as soon as possible. He performed the surgery on August 4. That procedure involved using a laser to burn parts of Daniella’s retinas. The surgery sacrifices the patient’s peripheral vision to some extent to conserve his or her “central vision.”
At some point after the August 4 surgery, Daniella’s right retina became detached. As a result, she is blind in her right eye, and eventually the eye may have to be removed. She has some vision in her left eye, but it is significantly impaired. There was evidence that Daniella must wear glasses and must hold symbols a few inches from her left eye in order to see them. There was also evidence that she suffers from other conditions, such as cerebral palsy, and that she is developmentally delayed to an undefined extent.
B. Procedural history and issues on appeal
In 2008, appellees, as next friends of Daniella, sued appellants and Del Sol Medical Center’s owners for negligence and gross negligence that allegedly caused Daniella’s vision impairment. The owners settled with appellees before trial. The remaining claims were tried to a jury in 2011. The trial judge submitted jury questions regarding the negligence of Ponte, Llamas, and Del Sol Medical Center. He did not submit any questions regarding any independent negligence by Pediatrix or by Llamas’s professional association.
The jury found Ponte, Llamas, and Del Sol Medical Center negligent. It apportioned 45% of the responsibility for Daniel-la’s injury to Ponte, 45% to Llamas, and 10% to Del Sol. For damages, the jury found that Daniella would incur future medical expenses of $962,000 after she turned 18 and future attendant care expenses of $988,000 after she turned 18. The jury also found damages for Daniella’s pain and mental anguish, disfigurement, and physical impairment totaling $174,000. Because the verdict was not unanimous, the jury did not answer the question about Ponte’s and Llamas’s gross negligence.
The parties engaged in post-verdict motions practice. The trial judge signed a final judgment, a corrected final judgment, and finally a second corrected final judgment. In the second corrected final judgment, the judge rendered judgment against appellants based on the jury verdict, adjusted to account for the settlement credit. In that judgment, Llamas and his professional association were held jointly and severally liable for about $873,000, and Ponte and Pediatrix were separately held jointly and severally liable for the same amount.
II. Sufficiency of the Proximate Cause Evidence
Appellants argue that the evidence is legally insufficient to support the jury’s findings that Ponte’s and Llamas’s negligence proximately caused any injury to Daniella’s vision. Appellants preserved their legal sufficiency challenge by means
A. Standard of review
When an appellant attacks the legal sufficiency of the evidence to support an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. If evidence is so weak that it does no more than create a surmise or suspicion of the matter to be proved, the evidence is no more than a scintilla and, in legal effect, is no evidence. The evidence is legally sufficient if it is sufficient to enable reasonable and fair-minded people to reach the verdict under review. In conducting our review, we view the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. We must credit evidence favorable to the verdict if a reasonable person could, and we must disregard contrary evidence unless a reasonable person could not.
B. Applicable law
In a medical-malpractice case, the plaintiff must prove the existence of a legal duty, a breach- of that duty by the defendant, proximate causation, and damages.
If the causation issue is not one within the experience of a lay person, the plaintiff must ordinarily produce expert testimony of proximate causation.
If no factual basis is offered for the causation opinion, or the factual basis that is offered provides no support, the causation opinion is conclusory, even if it is not objected to.
C. Review of the evidence
1. Background facts and standard-of-care evidence
The jury heard evidence of these background facts. Normally, retinal blood vessels develop flat against the back wall of the retina. But in premature babies, the retina and its blood vessels are not fully developed at birth. Such babies often develop ROP, which is characterized by the development of weak, abnormal blood vessels that can actually grow out into the center cavity of the eye. ROP is referred to as “plus disease” if the abnormal blood vessels are thick, tortuous, and located in the back of the eye near the optic nerve. Scientists believe that ROP is caused when the parts of the retina that lack blood vessels produce a growth factor that triggers the development of the abnormal blood vessels. Evidence was presented that ROP eventually goes away by itself, and that not all babies who develop ROP need treatment. In some cases, however, ROP can cause scar tissue that can in turn cause retinal detachment and vision loss. Thus, in serious ROP cases, surgical treatment is appropriate. The current form of treatment is laser surgery, which uses a laser to burn some of the parts of the retina that produce the growth factor. The evidence showed that it was extremely likely that Daniella would eventually develop ROP. Ponte himself testified that 100% of babies born at 23 weeks develop ROP.
There was evidence that in 2001, the American Academy of Pediatrics and the American Academy of Ophthalmology promulgated guidelines recommending that physicians start examining premature babies for ROP at the later of four to six weeks after birth or 31 to 33 weeks gestational age. The 2001 guidelines were not changed until 2006, and Ponte testified that he followed the 2001 guidelines until 2006 (the year after Daniella’s birth and treatment).
Appellees’ expert witness William Good, M.D., a pediatric ophthalmologist, however, testified that a study called the Early Treatment for Retinopathy of Prematurity (ETROP) was conducted before 2003. He opined that publishing of the study’s results in 2003 changed the standard of care very quickly. Good testified that the ETROP study showed that babies should be screened and treated for ROP earlier than was previously believed.
Good identified three standard of care breaches in this case, the first two he ascribed to both Ponte and Llamas and the last he ascribed to Llamas alone. First,
Second, Good testified that the three-day delay in treatment between August 1 and August 4 violated the standard of care because Daniella’s ROP should have been treated earlier than that.
Third, he testified that the manner in which Llamas performed the laser surgery was inadequate.
Appellees also introduced testimony from expert witness and neonatologist Dale Phelps, M.D. She testified that Ponte breached the standard of care by failing to “work[ ] out a set of written guidelines for his staff to communicate with the ophthalmologist.” She indicated that this criticism related to Daniella’s follow-up examinations for ROP. She also testified that Llamas breached the standard of care by scheduling Daniella’s follow-up eye examination four weeks after the July 4 exam and by failing to describe his observations in his notes from the July 4 exam in a way that could be understood by the staff that he was working with. She testified that, depending on Llamas’s observations on July 4, a follow-up eye examination should have been done somewhere from one to three weeks after the July 4 examination. She did not, however, provide any testimony regarding the surgery itself.
2. Proximate-cause evidence
Appellees do not argue that they proved cause in fact without expert testimony. They instead rely on Good and Phelps for that evidence. Good testified about the effect of delaying treatment after Llamas examined Daniella on August 1: “[Ejvery day that went by [without treatment] put [Daniella] at further risk of suffering an adverse outcome.” He then criticized the manner in which Llamas performed the laser surgery as follows:
Thirdly, as I have looked at the pictures of the treatment administered by Dr. Llamas to Daniella, it looks to me like it was inadequate. There are skip lesions. There are areas where the retinal burns either didn’t take or were not administered. And this also contributed to, in a proximate way, to her loss of vision in the right eye and some detrimental loss of vision in the left eye.
[T]he treatment pattern is not as confluent as it should have been, even where the laser burns have taken. But there are also areas called skip areas. These are areas where there is no treatment at all, and these contribute to an adverse outcome in a manageable ROP.
(Emphases added.) Later, Good addressed causation more globally and at greater length:
Q. What injury or change in Daniella resulted from the failures to examine appropriately, timely, and to treat properly and timely, more likely than not?
A; Well, if you look at the various places where negligence occurred, in an incremental fashion, each of those contributed to the poor visual outcome that Daniella experienced. The delay in screening examinations for four weeks to a probability prevented Dr. Llamas from identifying ROP when it could have been treated earlier. That would have improved the chance of a good visual outcome for her. The delay in laser treatment for three days also in my opinion incrementally increased the chances of a bad outcome for her. And then, finally, the inadequate laser treatment I think really was the coup de grace here, and it basically placed these eyes at extremely high risk and was causally or proximately responsible for blindness in the right eye and poor vision in the left eye.
Q. All right. Let me tell you that in Texas, the definition of proximate cause is that cause which, in a natural and continuous sequence, produces an event, and without which cause the event would not have occurred. And there may be more than one proximate cause of an event. Can you accept that definition?
A. Yes.
Q. Is Daniella’s blindness in your opinion proximately caused by the negligence that you described for us?
A. Yes, it was.
Q. Can you tell us more likely than not what her vision would be like had these defendants acted properly?
A. More likely than not, she would have what I would call a sighted life. In other words, she would be able to use her vision to function in her environment.
Good also opined that Daniella’s vision would be better than 20/200 if appellants had given her appropriate treatment. Instead, her right eye is blind, and her left eye is roughly 20/1200 or 20/1300.
Phelps, who focused on the four week gap between the July 4 and the August 1 examinations as the principal negligence committed by Ponte and Llamas, provided the following causation testimony:
Q. ... So what more likely than not would have resulted had Dr. Llamas and Dr. Ponte followed the followup examination schedule in the guidelines?
A. He would have seen the ROP as it started up or as it became established and before it became advanced. If it was looking very threatening, they might have moved their schedules — exam schedules closer together to make sure they caught it quickly when it got to the point where it needed surgery.
Q. Okay.
A. That was — that would be my expectation.
Q. Do you think more likely than not Daniella would have functional vision had they done it correctly?
A. Yes.
Shortly thereafter, • appellees’ counsel again asked Phelps, “Would Daniella Bus-tamante more likely than not in your opinion have functional vision had they done it correctly — these doctors done this correctly?” Phelps answered, “Yes.”
a. Ponte
After reviewing both experts’ testimony, we conclude that appellees adduced legally insufficient evidence of cause in fact against Ponte.
(1) Good’s causation testimony
Good did not testify that Ponte’s negligent acts and omissions, individually or collectively, were more likely than not a but-for cause of Daniella’s injuries. Rather, he testified that each instance of negligence by both doctors contributed “in an incremental fashion” to Daniella’s poor visual outcome. Ponte’s first act of negli
Good also failed to establish but-for causation as to Ponte’s other act of negligence, permitting a three day delay in the performance of the laser surgery after the August 1 examination. According to Good, this delay “incrementally increased the chances of a bad outcome for” Daniella. Again, his testimony that swifter surgery would have had some unquantified positive effect on Daniella’s chance of a better outcome is legally insufficient to show but-for causation.
Good gave additional causation testimony after he added to the equation Llamas’s negligence in performing the laser surgery. Good described the inadequate laser surgery as “the coup de grace” and said that the surgery “was causally or proximately responsible for blindness in the right eye and poor vision in the left eye.” Appellees’ counsel then gave Good a definition of proximate cause that included the cause-in-fact requirement, and he asked Good whether all of the negligence he had described, committed by both Ponte and Llamas, proximately caused Daniella’s injuries: “Is Daniella’s blindness in your opinion proximately caused by the negligence that you described for us? ” (Emphasis added.) Good answered, ‘Tes, it was.” Counsel then asked, “Can you tell us more likely than not what her vision would be like had these defendants acted properly?” (Emphasis added.) Good answered, “More likely than not, she would have what I would call a sighted life. In other words, she would be able to use her vision to function in her environment.”
When Good expressed a causation opinion in terms of but-for causation, he predicated his opinion on the combined negligence of both Ponte and Llamas as to all three events — the negligent examination schedule, the three day delay in performing the surgery, and Llamas’s negligent performance of the laser surgery. But Ponte was not involved in performing the laser surgery, so he was not responsible for the consequences of any negligence that necessarily included negligent performance of the laser surgery. As emphasized above, Good declined to opine that the four week delay in examining Daniel-la or the three day delay in performing the surgery, either separately or considered together, was more likely than not a but-for cause of Daniella’s injuries. We conclude that Good’s testimony constitutes no evidence that Ponte’s negligence was a but-for cause of the injuries to Daniella’s eyes.
(2) Phelps’s causation testimony
This leaves the causation testimony of Phelps, who identified Ponte’s negli
We conclude that Phelps’s testimony about the causal connection between Ponte’s negligence and Daniella’s injuries was conclusory and therefore constituted no evidence of but-for causation against Ponte.
Phelps testified about the ETROP study results and said that favorable outcomes were more common among babies who received early laser treatment as compared to babies who received laser treatment later. She also testified that bad results occurred after conventionally timed laser treatment about 14% to 16% of the time and that babies in the early treatment group suffered bad results only about 9% of the time. But she did not say that the ETROP study showed that earlier treatment of Daniella probably would have prevented her injuries in her particular case. (In fact, Good specifically denied that the ETROP study could be used to determine whether a delay in treatment actually affected a baby’s vision.)
When the evidence shows that a particular treatment helps some patients and not others, the expert must explain the facts justifying a conclusion that a particular patient probably would have been helped by the treatment.
b. Llamas
Next, we examine the cause in fact evidence as to Llamas. We hold that all of the evidence that Llamas’s negligence caused Daniella’s injuries was con-clusory and therefore is no evidence of proximate cause.
(1) Phelps’s causation testimony
We have already held that Phelps’s causation testimony was conclusory and non-probative as to Ponte. Phelps did not offer any different causation testimony as to Llamas. Indeed, she lumped Ponte and Llamas together when she opined that Daniella would have functional vision if Ponte and Llamas had not been negligent regarding Daniella’s follow-up exam schedule. Accordingly, we conclude that Phelps’s conclusory causation testimony was no evidence of but-for causation against Llamas.
(2) Good’s causation testimony
This leaves the testimony of Good, who identified Llamas’s three negligent acts as failing to examine Daniella between July 4 and August 1, failing to perform the laser
We next consider Good’s testimony regarding Llamas’s third act of negligence, his negligent performance of the laser surgery. When Good considered the surgery by itself, he did not opine clearly that the surgery alone was probably a but-for cause of Daniella’s injuries. He testified that the inadequate surgery “contributed to, in a proximate way, to her loss of vision in the right eye and some detrimental loss of vision in the left eye.” He also testified that the flaws in the surgery “eontribute[d] to an adverse outcome in a manageable ROP.” But Good did not opine that the inadequate surgery alone was, more likely than not, a but-for cause of Daniella’s vision loss. His opinions that the negligence “contributed to” the vision loss are legally insufficient evidence of proximate cause.
But Good did say that all three negligent acts by Llamas collectively were, more likely than not, a but-for cause of Daniel-la’s injuries. After testifying that Llamas’s first two negligent acts increased Daniella’s risk, Good testified that Llamas’s negligent performance of the laser surgery “basically placed these eyes at extremely high risk and was causally or proximately responsible for blindness in the right eye and poor vision in the left eye.” (Emphasis added.) Then appellees’ lawyer defined proximate cause for Good, and Good testified that Daniella’s extremely limited vision was proximately caused by “the negligence” that Good had previously described — meaning, in context, all the negligence by both appellants. Good also testified that if appellants had acted properly, “[m]ore likely than not, [Daniel-la] would have ... a sighted life. In other words, she would be able to use her vision to function in her environment.” Good’s testimony, taken at face value, was sufficient to show that Llamas’s negligence, considered collectively, was more likely than not a but-for cause of Daniella’s injuries. But, as discussed below, that does not answer the question of whether the causation evidence was legally sufficient.
We next consider Llamas’s argument that Good’s cause-in-fact testimony against Llamas was conclusory. The question is whether Good explained how and why Llamas’s three acts of negligence caused the injury.
This leaves Good’s testimony that Llamas’s negligent performance of the laser surgery was causally connected to Daniel-la’s injuries. Good testified that laser therapy has an overall success rate of over 75%. He criticized Llamas’s surgery because, Good claimed, he could see from photographs that there were areas where Llamas failed to make the laser burns sufficiently close together, and there were other places, which he called “skip lesions” or “skip areas,” where the laser burns “didn’t take” or where Llamas applied no laser treatment at all. Good testified that in a proper laser surgery, the burn areas should be confluent or nearly confluent, meaning no more than one burn width apart. He also said that leaving skip areas can allow the disease to progress further.
On the other hand, Good also testified that there was a significant chance that Daniella would have suffered the same bad outcome even with proper treatment. On cross-examination, Good agreed that 89 of the babies involved in the ETROP study, or about 22%,
The key legal principle is stated in the Jelinek case: “[W]hen the facts support several possible conclusions, only some of which establish that the defendant’s negligence caused the plaintiffs injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion.”
Appellees rely heavily on the following testimony by Good in their attempt to show that Good sufficiently explained the basis for his causation opinion:
[A]s I have looked at the pictures of the treatment administered by Dr. Llamas to Daniella, it looks to me like it was inadequate. There are skip lesions. There are areas where the retinal burns either didn’t take or were not administered. And this also contributed to, in a proximate way, to her loss of vision in the right eye and some detrimental loss of vision in the left eye.
[[Image here]]
When a laser burn takes, it makes a white mark. And where there is no laser treatment or the laser burn does not take, there is no mark.
And so there are — the treatment pattern is not as confluent as it should have been, even where the laser burns have taken. But there are also areas called skip areas. These are areas where there is no treatment at all, and these contribute to an adverse outcome in a manageable ROP.
[[Image here]]
We think the physiology is that the cells that exist outside of where the retina is vascularized, meaning the area where there are no blood vessels, we think that these cells after a while begin to send a signal. The signal is a protein, which is a growth factor. It is called vascular endothelial growth factor. And this signal incites the development of abnormal, more fragile blood vessels to grow.
So literally what happens is, blood vessels begin to grow instead of normally along — flat against the back wall of the retina, they start to grow out into the center cavity of the eye.
Eventually, these blood vessels will go away, but in the process they bring in cells that are precursors to the formation of scar tissue. And so the retina can detach, and it can detach partially or it can detach completely.
And then, when asked whether skip areas “keep the disease progressing instead of stopping,” Good answered, “Well, it can, yes.” In his testimony, Good gave a general explanation of the physiology underlying ROP, and in Phelps’s testimony, she explained that using a laser to burn part of the retina that lacks blood vessels prevents the release of the growth factors that cause ROP. The record thus contains evidence explaining how laser treatment effectively treats ROP when it does effectively treat ROP. But no one explained why laser treatment failed roughly 22% of the time in the ETROP study, and no one explained why proper laser treatment in Daniella’s specific case probably would have resulted in a better outcome, despite Daniella’s specific risk factors that made her prognosis worse than it otherwise would have been.
This case is similar to the Jelinek case, in which a hospital negligently failed to treat its patient with antibiotics as prescribed, and the patient suffered a significant amount of pain thereafter.
Here, like Jelinek, the evidence showed that there was a significant chance that Daniella would have suffered the same injuries even if Llamas had performed the surgery as Good said he should have. The evidence also showed that Daniella had specific risk factors that made a bad outcome in her case more likely. But Good did not explain why performing the surgery differently probably would have prevented Daniella’s injuries in her particular case, despite the possibility of a bad outcome even with proper treatment and despite her particular risk factors that increased the likelihood of a bad outcome. After reviewing the record, we conclude that Good’s causation testimony regarding Llamas’s negligent surgery was conclusory because Good did not explain how and why performing the surgery differently probably would have resulted in a different outcome for Daniella.
(3) Statistical evidence
Appellees’ motion for rehearing does not argue that Good or Phelps offered enough factual and explanatory testimony to make their ultimate causation opinions nonconclusory. Instead they argue that the evidence about the ETROP study results was sufficient evidence of but-for causation, citing Merrell Dow Pharmaceuticals, Inc. v. Havner ex rel. Havner,
In Havner, the Texas Supreme Court specifically declined to hold “that a single epidemiological test is legally sufficient evidence of causation.”
To raise a fact issue on causation and thus to survive legal sufficiency review, a claimant must do more than simply introduce into evidence epidemiological studies that show a substantially elevated risk. A claimant must show that he or she is similar to those in the studies. This would include proof that the injured person was exposed to the same substance, that the exposure or dose levels were comparable to or greater than those in the studies, that the exposure occurred before the onset of injury, and that the timing of the onset of injury was consistent with that experienced by those in the study. See generally Thompson, supra, 71 N.C. L.Rev. at 286-88. Further, if there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty. See generally E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 , 559 (Tex.1995) (finding that the failure of the expert to rule out other causes of the damage rendered his opinion little more than speculation); Parker v. Employers Mut. Liab. Ins. Co.,440 S.W.2d 43 , 47 (Tex.1969) (holding that a cause becomes “probable” only when “in the absence of other reasonable causal explanations it becomes more likely than not that the injury was a result”).32
We conclude for several reasons that the ETROP study evidence constitutes no evidence of but-for causation of Daniella’s injuries.
First, there is no evidence showing that Daniella’s particular characteristics were substantially similar to the ETROP study group’s characteristics. No summary or report of the ETROP study’s results was admitted into evidence, so we know very little about it other than its concluding results. Accordingly, we have no way to determine how the ETROP results might apply to Daniella’s particular facts, and there is no reasonable basis for concluding that the ETROP study’s results would also apply to her. Good admitted that Daniella had risk factors that made a bad outcome more likely in her case regardless of the course of treatment. Nothing in the record indicates whether the babies involved in the ETROP study suffered from any of the same risk factors that Daniella had. The record does not disclose whether the ETROP babies who experienced bad outcomes despite early treatment were more similar to Daniella than were the ETROP babies who experienced good outcomes. Without evidence showing that Daniella was similar to the babies involved in the ETROP study, the ETROP study cannot support a causation finding.
. Second, this excerpt from the supreme court’s Jelinek decision represents that opinion’s core principles:
It is not enough for an expert simply to opine that the defendant’s negligence caused the plaintiffs injury. The expert must also, to a reasonable degree of medical probability, explain how and why the negligence caused the injury. We have rejected expert opinions not grounded in a sound evidentiary basis: “[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection. ‘[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.’ ” City of San Antonio v. Pollock,284 S.W.3d 809 , 818 (Tex.2009) (quoting Burrow v. Arce,997 S.W.2d 229 , 235 (Tex.1999)); see also Whirlpool Corp. v. Camacho,298 S.W.3d 631 , 637 (Tex.2009) (“Conclusory or speculative opinion testimony is not relevant evidence because it does not tend to make the existence of material facts more probable or less probable.”). When the only evidence of a vital fact is circumstantial, the expert cannot merely draw possible inferences from the evidence and state that “in medical probability” the injury was caused by the defendant’s negligence. The expert must explain why the inferences drawn are medically preferable to competing inferences that are equally consistent with the known facts. Thus, when the facts support several possible conclusions, onlysome of which establish that the defendant’s negligence caused the plaintiffs injury, the expert must explain to the fact finder why those conclusions are superior based on verifiable medical evidence, not simply the expert’s opinion. See Lenger [v. Physician’s General Hospital, Inc. ], 455 S.W.2d [703] at 707 [ (Tex.1970) ] (“[E]xpert testimony that the event is a possible cause of the condition cannot ordinarily be treated as evidence of reasonable medical probability except when, in the absence of other reasonable causal explanations, it becomes more likely than not that the condition did result from the event.”); Hart v. Van Zandtl 399 S.W.2d [791] at 792 [ (Tex.1965) ] (“The burden of proof is on the plaintiff to show that the injury was negligently caused by the defendant and it is not enough to show the injury together with the expert opinion that it might have occurred from the doctor’s negligence and from other causes not the fault of the doctor. Such evidence has no tendency to show that negligence did cause the injury.”). 34
Jelinek thus instructs that, where an expert attempts to explain his or her con-elusory opinion, that explanation must have a sound evidentiary basis or the expert’s opinion is still no evidence.
Third, the ETROP study evidence furnishes no causation evidence regarding the theory that Llamas ⅛ negligent performance of the surgery caused Daniella’s blindness. Good testified that Llamas’s surgery performance was negligent because the laser burns were not as confluent as they should have been and because there were skip areas. But he did not testify that the ETROP study surgeries conformed to the standard of care as Good defined it. He acknowledged that he did not look at all of the babies’ eyes that were operated on in the ETROP study to see how those surgeries were performed:
Q. In fairness, in the ETROP, did you ever go back and look at the amount of laser that was done by the doctors in your study to see if there was near confluent treatment in every eye that was treated?
A. Not in every eye, but in many eyes.
Q. All right. Did you go back and look at the 89 eyes that had retinal detachments and see if those doctors had done near confluent laser?
A. Did I go back and do it? No.
Q. And so as you sit here today, are you assuming that those 89 eyes went on to retinal detachment even though they got appropriate laser therapy?
A. Yes, I am.
Good’s testimony does not show that the ETROP study has any probative force regarding the causal connection between the manner of performing laser surgery and the outcome. We can infer from his testimony that he looked at some of the surgical results, and in “many” eyes the laser was applied in a confluent manner, but it is unknown whether the laser was not applied confluently to other eyes in the majority cohort. And he testified that he did not examine the eyes that suffered retinal detachment, so it is possible that those
Fourth, Good admitted that the ETROP study is not proper causation evidence as to negligent treatment delays — which means that the study is useless as to both acts of negligence alleged against Ponte and two of the three acts of negligence alleged against Llamas.
Finally, the ETROP study is just one study. The Havner court specifically declined to hold that a single epidemiological test is legally sufficient causation evidence.
Jelinek and Havner required appellees to provide a factual basis for comparing Daniella and the ETROP study participants. To say that the ETROP study shows that Daniella — with her specific additional risk factors — had about a 78% chance of a sighted life assumes that her situation is sufficiently similar to the study participants. However, the record provides no evidence supporting that assumption. Because the required evidence is missing, appellees did not provide the circumstantial causation evidence that Jeli-nek requires.
D. Conclusion
Appellees’ causation evidence showed only that a different treatment plan could have resulted in a different outcome for Daniella, which does not suffice to show but-for causation. To the limited extent appellees’ experts purported to establish but-for causation, their testimony lacked factual explanation and support and was thus non-probative. Accordingly, appel-lees adduced legally insufficient proximate cause evidence against appellees Ponte and Llamas. The trial court erred by failing to grant appellants’ motion for a take nothing judgment notwithstanding the verdict.
III. Disposition
For the foregoing reasons, we reverse the judgment of the trial court and render judgment that appellees take nothing from appellants.
Schenck, J., dissenting
Notes
. See Grocers Supply, Inc. v. Cabello,
. Hoss v. Alardin,
. See Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary, L.P.,
. Id. at 6.
. Doe v. Boys Clubs of Greater Dallas, Inc.,
. Rodriguez-Escobar v. Goss,
. Jelinek v. Casas,
. See Duff v. Yelin,
. Creech, 411 S.W.3 d at 6.
. Jelinek,
. See Jelinek,
. Thompson & Knight LLP v. Patriot Exploration, LLC,
. See Providence Health Ctr. v. Dowell,
. See id.
. See Jelinek,
. Archer v. Warren,
. See Providence Health Ctr.,
. See Christus St. Mary Hosp. v. O’Banion,
. See Jelinek,
. Llamas testified without contradiction that about 400 babies were involved in the ETROP study.
.
.
. Id.
. Id. at 535-36.
. Id. al 536.
. Id. at 538.
.
.Id. at 718. The court later commented that an "isolated study” finding a statistically significant association between a drug and birth defects would not be legally sufficient evidence of causation. Id. at 727.
. Id. at 720 (emphasis added).
. See id.
.
. Id.
. Id. at 537-38.
.
. The dissent’s lymphoma hypothetical is unpersuasive because (1) it assumes the missing fact here — that the patient is like the study group; (2) it presents the same fact pattern that the supreme court held was deficient in Jelinek; and (3) it, like our record, fails to show that the negligence more than doubled the risk of harm as Havner requires. See Havner,
Dissenting Opinion
dissenting
The Court concludes in a thoughtful and comprehensive opinion that appellees offered no evidence of causation. I regret that I find myself unable to join it. Because I would hold that the record, viewed as a whole and in the light most favorable to the verdict, reflects at least some evidence of cause in fact, I respectfully dissent.
The Court clearly explains the applicable law. To establish cause in fact, the plaintiff must introduce evidence of a “reasonable medical probability” or a “reasonable probability” that her injury was caused by the defendant’s negligence. As the Court explains, this standard
As all involved in the case appear to agree, baby Daniella was highly likely to develop ROP, a condition that without timely diagnosis and competent surgical intervention could cause her permanent vision loss.
The question of causation in fact — or “but-for” cause — is usually among the more simple and obvious problems associated with legal liability in tort. By itself, but-for causation is far-reaching. The most vivid illustration of the breadth of the concept may come from the nursery rhyme relating the loss of a kingdom for want of a nail.
Fairly summarized, Dr. Good’s extensive testimony, as supplemented by like testimony from Dr. Phelps, identified the negligence of each defendant and explained how it contributed to Daniella’s blindness. The acts of negligence identified by the Court, and established by the evidence, were (1) failure to examine Daniella at all during a critical time period; (2) failure to perform laser treatment promptly after determining its necessity; and (3) negligent performance of the laser treatment itself. But the Court concludes that the expert testimony about these acts “does not suffice to show but-for causation” because it “lacked factual explanation and support” or was “conclusory.” Opinion at 13, 24. In the Court’s view, the plaintiffs failed to explain “how and why” these acts, undis-putedly in violation of the standard of care, caused Daniella’s blindness. See, e.g., Opinion at 15 (“The question is whether Good explained how and why Llamas’s three acts of negligence caused the injury.”). The experts, in my view, answered these questions by providing specific evidence from Daniella’s medical records, their own subsequent examination of her, and from their own expertise about the progression and treatment of ROP in general and in Daniella’s case in particular. They could not, of course, pinpoint exactly when Daniella developed ROP, testify to a date on which her ROP became treatable, or quantify exactly the actual delays. Because Daniella was not examined for four weeks, there is no medical record to consult to determine the status and progression of her ROP during this critical time period. But there was evidence from which the jury could have found that timely diagnosis and properly performed treatment would have, more likely than not, resulted in a sighted life for Daniella.
Dr. Good offered his opinions, quoted by the Court, that both the examination schedule and the laser treatment itself fell below the applicable standards of care, and that these failures were a proximate cause of Daniella’s blindness. No witness disputed that prompt diagnosis and treatment of ROP was the accepted standard of care (as Dr. Ponte agreed, ROP should be “diagnosed as soon as it is diagnosable” and “treated as soon as it is treatable”),
In addition to Dr. Good’s testimony, plaintiffs’ expert Dr. Phelps testified that if Drs. Ponte and Llamas had timely examined Daniella in accordance with the standard of care, they “would have seen the ROP as it started up or as it became established and before it became advanced.” If they had followed the standard of care, “more likely than not Daniel-la would have functional vision.” Thus, the only evidence offered at trial by any party was that timely and competent examination and treatment are the standard of care, and blindness is the foreseeable result when the standard is not met. Dan-iella’s experts then opined that Daniella is blind because she did not receive this timely and competent care.
Dr. Good also testified to his expert opinion that timely and competent “ROP laser therapy is effective in stopping the progression of ROP in most babies,” with a 75% success rate “or higher,” for “all comers.” Dr. Good was responding to a question regarding a chapter in a treatise written by one of the defense experts, Dr. Graham Quinn. Also, as appellees urge on rehearing, the ETROP
I would conclude on this record that there is nothing missing from this causal chain. The defendants knew Daniella’s risk of ROP was almost certain. They also knew that ROP could result in blindness, and that standards had been accepted by the medical community to prevent that result. Even at the time, defendants understood that timely examination, and treatment if necessary, prevented blindness. Yet Daniella’s ROP was neither “diagnosed as soon as it was diagnosable” nor “treated as soon as it was treatable.” In my view, the “how and why” is that defendants allowed Daniella’s ROP to progress past the point where diagnosis and treatment, in her experts’ opinion, should have been made and undertaken. When treatment was belatedly undertaken, it was improperly performed. Viewing the evidence in the light most favorable to the jury’s verdict, and indulging every reasonable inference that would support it, see City of Keller v. Wilson,
To be sure, had the laser therapy been performed without negligence, our causation inquiry would be simplified. Daniel-la’s blindness could have been a product of only one of two causes: (1) delaying the diagnosis and laser treatment, for which there is ample evidence, or (2) she had no hope of recovery regardless of her treatment — a notion supported by no evidence and contrary to the opinion of two experts and the probabilities suggested by the objective data. The fact that the causation problem is further obscured by additional negligence in performing the surgery does not add to the victim’s burden and would
As the jury was instructed, there may be one or more causes of an event. If there were some evidence that delay in treatment alone
correction.
In sum, Dr. Good explained how both Dr. Ponte and Dr. Llamas deviated from the applicable standards of care for babies at known risk for ROP, and further testified as to how these deviations were the proximate cause of Daniella’s blindness. This is, therefore, not a case where a credentialed expert appeared at trial simply to declare the harm to be a product of misfeasance, leaving the basis for the conclusion a mystery or in conflict with his own testimony concerning other possible causes.
On rehearing, appellees cite Merrill Dow Pharmaceuticals, Inc. v. Havner,
Neither Dr. Good’s failure to establish that Daniella’s blindness was attributed solely to one of the multiple acts of negligence here, nor his failure to explain why Daniella would not have been among the minority of patients (22%)
Although it is no longer explicit in the Court’s opinion that each defendant’s negligence alone must be, more likely than not, a but-for cause of Daniella’s injuries, the Court maintains its criticism of Dr. Good’s testimony that “he predicated his opinion on the combined negligence of both Ponte and Llamas” in a sequence of events. Opinion at 12. But a defendant’s act or omission need not be the sole cause of an injury, as long as it is a substantial factor in bringing the injury about. Havner v. E-Z Mart Stores, Inc.,
The Court also imposes a burden on plaintiffs to affirmatively disprove all other potential causes of an injury, regardless of likelihood of occurrence, in order to establish that a defendant’s negligence was more likely than not a cause in fact of an injury. See Opinion at 16-17 (Good “did not explain why he concluded Daniella would not have been among the 22% of babies who suffered blindness even after receiving proper laser treatment”).
Having established the treating physician’s negligence and the harm foresee-ably relating to it, and having proffered competent expert opinion — augmented by objective data supporting it — that the negligence was the probable cause of the foreseeable harm, a patient does not bear the further burden of negating all other possible causes of an injury in order to raise a fact issue with respect to causation. E-Z Mart Stores, Inc.,
While it was possible that Daniella would have been blind even with proper treatment, on this record, viewed- as a whole, it is not probable. Rather, the opposite has been shown — not to a certainty perhaps, but certainly to a reasonable degree of medical probability. The Supreme Court has set the probability bar at 50% in Kramer. Kramer v. Lewisville Mem’l Hosp.,
The Court relies on Jelinek to impose these burdens in addition to proof of a reasonable medical probability that Daniel-la’s injury was caused by appellants’ negligence. I would conclude that this ease is materially distinct from Jelinek. In Jeli-nek, a doctor testified that the plaintiffs pain was caused by the defendants’ failure to treat her infection with a particular antibiotic.
Absent equally likely causes, I do not think the Jelinek court would require an
In my view, such a notion is contrary to settled Texas law. Quoting Havner, the court in Transcontinental Ins. Co. v. Crump,
In Kramer, the court explained, “the ultimate standard of proof on the causation issue” in a medical malpractice case 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.”
Here, Dr. Good did not testify regarding equally likely causes of Daniella’s blindness. Instead, Dr. Good testified unequivocally that the delay in Daniella’s screening evaluation, the delay in laser treatment, and the inadequate laser treatment “each contributed to the poor visual outcome that Daniella experienced.” Dr. Good testified that “more likely than not,” Daniella’s blindness was caused by the negligence he and Dr. Phelps described, and cited the ETROP study showing a high success rate for properly treated patients to augment that conclusion. Under Jelinek, this testimony is sufficient to establish cause in fact. See Jelinek,
CONCLUSION
I would grant appellees’ motion for rehearing and affirm the trial court’s judgment.
. Dr. Ponte, the medical director of the neonatal intensive care unit (“NICU”) that treated Daniella, testified that babies as premature as she was were 100% certain to develop ROP. He, together with Dr. Llamas, was responsible for establishing the examination schedule. Despite testimony reflecting the rapid progress of ROP and the need for surgical intervention within 48 or, perhaps, 72 hours of a determination of "threshold” ROP, Daniella went one month from her first examination to her second, at which point Dr. Llamas determined she required immediate laser surgery. Contrary to the published standards on which defendants rely, the NICU had no protocols requiring more prompt examination, despite the high risk of patients like Daniella developing ROP, and had no ready access to the laser needed to treat it.
. Indeed, given the nature of the risk and the presence of negligence one might argue that a reasonable lay juror might directly infer the requisite factual causation — a notion we need not explore in this case given the admission of Dr.' Good’s expert causation testimony. While expert opinion evidence is necessary to establish the standard of care and breach in medical malpractice cases, it is not invariably necessary to establish factual causation, depending on the nature of the claimed injury. Jelinek,
. See, e.g., Providence Health Ctr. v. Dowell,
. See generally Union Pump Co. v. Albritton,
. Delay in diagnosis and treatment, such as the jury impliedly found here as to all defendants, can be a contributing cause leading to blindness in an ROP patient, as Drs. Good and Phelps opined below, and as Dr. Llamas has previously argued to this Court. Llamas-Soforo v. Jimenez, No. 05-09-00102-CV,
. As the Court explains, the Early Treatment for Retinopathy of Prematurity or ETROP study was conducted prior to 2003. Dr. Good was the chair of the ETROP study. Because Dr. Good was the chair of the ETROP study, the jury may have found his testimony that defendants breached the applicable standards of care particularly credible.
. As the Court points out, Dr. Good agreed that the ETROP study was not designed to determine whether a delay in screening actually affected a baby's vision, and that it would be “an incorrect use” of the ETROP study to “claim that it was designed to detect or to look at the effect of delay.” Opinion at 15-16. As Dr. Good explained, however, the result of the ETROP study was “that earlier treatment in high-risk babies had a beneficial effect compared to conventional management,” including benefits in both structure (such as retinal detachment) and function (visual acuity). The earlier study on which defendants rely specifically warned that blindness could result from a delay in either diagnosis or treatment.
. For example, during deliberations, the jury asked for a copy of the 2001 standards on which the defendants relied to establish the standards of care at the time of Daniella’s birth and treatment. The parties agreed to provide Court’s Exhibit 3, guidelines developed jointly by the American Academy of Pediatrics, the American Association for Pediatric Ophthalmology and Strabismus, and the American Academy of Ophthalmology in 2001, which provided in part,
Responsibility for examination and followup of infants at risk for ROP must be carefully defined by each neonatal intensive care unit.... If responsibility for arranging follow-up after discharge is delegated to the parents, it must be clearly understood by the parents that blindness is a possible outcome, that there is a critical time window to be met if treatment is to be successful, and that timely follow-up examination is essential to successful treatment. (Emphasis added.)
. The Court calculates this percentage from testimony at trial regarding the ETROP study. See Opinion at 16 n.23.
. Where multiple negligent actors participate in an episode leading to a single injury, the common law responded with a variety of answers ranging from denying recovery, to shifting the burden to the defendants, to simply leaving all defendants fully and jointly liable for the injury. PROSSER & KEETON ON TORTS § 52 (5th ed.1984). The Texas Supreme Court settled on the latter approach. Riley v. Indus. Fin. Serv. Co.,
. As discussed in PROSSER & KEETON ON TORTS § 41, at 266-67 (5th ed.1984), "[i]f two causes concur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result,” courts have applied the "substantial factor” test, that is, whether the defendant's conduct was "a material element and a substantial factor in bringing [the event] about.” The authors note "[a]n interesting occasion for application of the same principle, where the negligence of each of two parties prevents the other from being a but-for cause,” in which “A supplies B with a car with no brakes; B makes no attempt to apply the brakes; and C is hit. Or A fails to signal for a left turn; B is not looking; there is a collision, and C is injured.” Id. at 267 n.27. In such a case, the conduct of each actor is a substantial factor in bringing the event about. See id. The Texas Supreme Court also considered the distinction between but-for cause and the substantial factor test in Bostic. See Bostic,
. See, e.g., Tex. Penal Code Ann. § 6.04(a) (West 2011) (person is criminally responsible if result would not have occurred but for his conduct). The Legislature’s definition clearly incorporates the notion of causation in fact. See, e.g., Thompson v. State,
. The Court also notes the possibility that some form of negligence might have been present among the 22% of cases in the ETROP study that experienced vision loss. That prospect suggests that the inevitability of Daniella’s blindness — the speculation at the core of the Court's conclusion — is actually reduced.
. If the state of medical science allowed a reconciliation between those who respond to timely and proper treatment and those who do not, there would be no one receiving treatment except those ordained to benefit from it. If Daniella had some discernable characteristic that put her in the 22%, one would expect that her treating physicians would have known of it as well, and avoided the pain and expense of surgery.
. While the record reveals that Daniella suffered from a variety of complicating conditions that occur in extremely premature babies, such as low birth weight, that prematurity is what put her and other similarly-situated patients at high risk of developing ROP. With no evidence to explain what percentage of the ETROP patients suffered from like complications or how, if at all, those complications might have moved the probability needle we are left with the evidence we have. As that evidence is more than nothing, I would leave the parties where they were below. Relatedly, if there was some aspect of Daniella’s condition that would have placed her at an objectively increased risk of blindness (i.e., greater than 22% or, more importantly, 50%) despite timely diagnosis and treatment, one would assume that such a condition was also within the knowledge of her treating physicians who, one would expect, would have so informed her parents before exposing Daniella to the discomfort and expense of surgery despite the higher risk.