Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/2/2015 1:48:23 PM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00059-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/2/2015 1:48:23 PM DEBBIE AUTREY CLERK
No. 06-15-00059-CV _______________________________________________________ Texas Court of Appeals for the Sixth District at Texarkana __________________________________________ Frankie Marie Miller, individually and as Personal Representative of the Estate of T.J. Miller, Appellant, v.
Janie Mullen, as Personal Representative of the Estate of John B. Mullen, M.D., Appellee.
_________________________________________ On Appeal from the 76th Judicial District Court of Titus County, Texas Cause No. 36,865
_______________________________________________________ Appellant’s Brief and Appendix _______________________________________________________ Charles “Chad” Baruch J OHNSTON T OBEY B ARUCH , P.C. 3308 Oak Grove Avenue Dallas, Texas 75204 Telephone: (214) 741-6260 Facsimile: (214) 741-6248 Email: chad@jtlaw.com Counsel for Appellant ORAL ARGUMENT (CONDITIONALLY) REQUESTED *2 Identity of Parties and Counsel Appellant Frankie Marie Miller, individually and as Personal
Representative of the Estate of T.J. Miller
Counsel in the Court of Appeals: Counsel in the Trial Court:
Charles “Chad” Baruch Windle Turley
Texas Bar Number 01864300 Texas Bar Number 20304000
J OHNSTON T OBEY B ARUCH , P.C. Patrick Wigle
3308 Oak Grove Avenue Texas Bar Number 24058779
Dallas, Texas 75204 Turley Law Firm
6440 North Central Ewy. Dallas, Texas 75206 Appellee Janie Mullen, as Personal Representative of the Estate of
John B. Mullen, M.D.
Russell W. Schell
Texas Bar Number 17736800
Stephani R. Johnson
Texas Bar Number 00794034
S CHELL C OOLEY , LLP
15455 Dallas Parkway, Suite 550
Addison, Texas 75001
Trial Judge
Hon. Danny Woodson
76th Judicial District Court
Titus County, Texas
i
Table of Contents
Identity of Parties and Counsel ................................................................................... i
Table of Contents ....................................................................................................... ii
Index of Authorities ..................................................................................................iii
Statement of the Case ................................................................................................ 1
Statement Regarding Oral Argument ........................................................................ 1
Statement of Issues .................................................................................................... 1
Statement of Facts ...................................................................................................... 2
Summary of the Argument ........................................................................................ 5
Argument ................................................................................................................... 5
1. Miller presented evidence that Dr. Mullen acted with wilful and wanton negligence .................................................................................... 7 2. Miller presented evidence of causation .................................................... 17 Conclusion ............................................................................................................... 23
Certificate of Compliance ........................................................................................ 23
Certificate of Service ............................................................................................... 24
Appendix:
Tab 1: Final Judgment
ii
Index of Authorities
Cases
City of San Antonio v. Pollock ,
284 S.W.3d 809 (Tex. 2009) ................................................................................ 13 Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue ,
271 S.W.3d 238 (Tex. 2008) .................................................................................. 8 Crocker v. Babcock ,
448 S.W.3d 159 (Tex. App.—Texarkana 2014, pet. denied) ................................. 5 Forbes, Inc. v. Granada Biosciences, Inc. ,
124 S.W.3d 167 (Tex. 2003) .............................................................................. 6-7 Fougth v. Solce ,
821 S.W.2d 218 (Tex. App.—Houston [1st Dist.] 1991, writ denied) ................ 17 Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co. ,
391 S.W.2d 41 (Tex. 1965) .................................................................................... 5 Kindred v. Con/Chem, Inc. ,
650 S.W.2d 61 (Tex. 1983) .................................................................................... 7 King Ranch, Inc. v. Chapman ,
118 S.W.3d 742 (Tex. 2003) .................................................................................. 7 Lee Lewis Constr., Inc. v. Harrison ,
70 S.W.3d 778 (Tex. 2001) .................................................................................... 9 Lenger v. Physician’s Gen. Hosp., Inc. ,
455 S.W.2d 703 (Tex. 1970) ................................................................................ 22 Kramer v. Lewisville Mem. Hosp. ,
858 S.W.2d 397 (Tex. 1988) ................................................................................ 22 Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding ,
289 S.W.3d 844 (Tex. 2009) .................................................................................. 5 iii
Merrell Dow Pharms., Inc. v. Havner ,
953 S.W.2d 706 (Tex. 1997) .................................................................................. 7 Mobil Oil Corp. v. Ellender ,
968 S.W.2d 917 (Tex. 1998) ................................................................................ 12 Park Place Hosp. v. Milo ,
909 S.W.2d 508 (Tex. 1995) ................................................................................ 17 Sage v. Howard ,
465 S.W.3d 398 (Tex. App.—El Paso 2015, no pet.) .......................................... 16 Skiles v. Jack in the Box, Inc. ,
170 S.W.3d 173 (Tex. App.—Dallas 2005, no pet.), rev’d on other grounds , 221 S.W.3d 566 (Tex. 2007) ................................................................... 5 Transp. Ins. Co. v. Moriel ,
879 S.W.2d 10 (Tex. 1994) .............................................................................. 8, 13 Travelers Ins. Co. v. Joachim ,
315 S.W.3d 860 (Tex. 2010) .................................................................................. 5 Turner v. Franklin ,
325 S.W.3d 771 (Tex. App.—Dallas 2010, pet. denied) ............ 7-9, 12, 13, 15-16 Valence Operating Co. v. Dorsett ,
164 S.W.3d 656 (Tex. 2005) .................................................................................. 5 Statutes and Rules
T EX . C IV . P RAC . & R EM . C ODE § 74.153 (West 2011 & Supp. 2015) ....................... 7
T EX . R. C IV . P. 166a ................................................................................................... 6
iv
Statement of the Case Frankie Marie Miller, individually and as Personal Representative of the Estate of T.J. Miller, sued John B. Mullen, M.D. for medical
malpractice. [1] Dr. Mullen passed away during pendency of the lawsuit and
Janie Mullen, personal representative of his estate, was substituted as
defendant. [2] The trial court granted traditional and no-evidence summary
judgment to Mullen. [3] Miller appeals. [4]
Statement Regarding Oral Argument Oral argument would not assist the Court materially in resolving this appeal. As a result, Miller does not seek oral argument. But if the Court
schedules oral argument, Miller seeks to participate.
Statement of Issues The sole issue on appeal is whether the trial court erred in granting no-evidence and traditional summary judgment. This issue implicates the
following questions:
1. Did Miller present evidence, sufficient to overcome the no- evidence motion and create a fact issue on the traditional motion, that Dr.
Mullen acted with wilful and wanton negligence?
*7 2. Did Miller present evidence, sufficient to overcome the no- evidence motion and create a fact issue on the traditional motion, of
causation?
Statement of Facts On the morning of April 22, 2011, T.J. Miller underwent an epidural cervical steroid injection (ECSI) at Titus Regional Medical Center. Shortly
afterward, Miller experienced intense neck pain; he returned to Titus at
around 10:55 a.m. [5] Unknown to anyone at the time, medical personnel had
nicked Miller’s artery during the ECSI and he was bleeding internally. [6]
A Titus nurse took Miller to the emergency room, where he was placed under the care of Dr. John B. Mullen. Based upon Miller’s neck pain,
Dr. Mullen immediately was concerned that Miller either was having a heart
attack or was bleeding internally (suffering hematoma) from the ECSI. [7] Dr.
Mullen ordered an EKG to rule out a heart attack. [8]
By 11:07 a.m., the EKG had come back normal, suggesting that Miller was not suffering a cardiac event. [9] Nevertheless, at 11:15 a.m., Titus
staff—at Dr. Mullen’s direction—administered 325 milligrams of aspirin to
*8 Miller. [10] Dr. Mullen ordered this administration of aspirin despite later
admitting that he knew—
Miller had just received an ECSI, [11]
The most likely causes of Miller’s pain were a heart attack or internal bleeding from the ESCI, [12]
Miller’s EKG was normal, suggesting that he was not suffering a heart attack, [13]
Administration of aspirin is “contraindicated” for patients experiencing bleeding because even low doses prevent blood from clotting, [14] and
Bleeding into the spinal column can result in paralysis. [15] Ultimately, Dr. Mullen diagnosed Miller with epidural hematoma—not the
myocardial infarction for which he ordered the aspirin dosage. [16]
After taking the aspirin ordered by Dr. Mullen, Miller continued to experience severe pain and lost feeling in his right leg. [17] Finally, Dr. Mullen
ordered an MRI to rule out hematoma. It revealed that Miller’s spinal cord
was flattened, compressed, and displaced into the anterior spinal canal.
*9 Miller was transported immediately by air to a higher-level treatment facility
for emergency procedures to decompress his spinal cord. [18]
During the subsequent surgery, Miller did not stop bleeding despite administration of several medications. [19] As a result of the bleeding, Miller
was rendered paraplegic. Eventually, he developed pneumonia and sepsis,
and died as the result of organ failure. [20]
Miller’s widow, Frankie (acting both individually and in her capacity as the personal representative for Miller’s estate), sued Dr. Mullen for
malpractice. [21] Dr. Mullen sought no-evidence and traditional summary
judgment arguing that (1) he did not act with the “wilful and wanton
negligence” necessary for malpractice arising from emergency medical care,
and (2) Miller lacked evidence of causation to show that he would not have
suffered the prolonged bleeding but for administration of the aspirin. [22]
The trial court granted summary judgment without specifying its grounds. [23]
*10 Summary of the Argument Miller presented evidence of wilful and wanton negligence sufficient to defeat no-evidence and traditional summary judgment. With regard to the
objective element of this test, Miller’s expert witness testified that Dr.
Mullen’s conduct was so far outside the governing standard of care that it
engendered an “extreme risk” of potentially “lethal consequences” to Miller.
With regard to the subjective element, Dr. Mullen admitted administering
the aspirin despite concerns that Miller was bleeding internally, and with full
knowledge of the attendant risks of prolonged bleeding and paralysis.
Miller also presented evidence of causation sufficient to defeat no- evidence and traditional summary judgment. Miller’s expert testified
unequivocally that Miller would not have experienced the prolonged
bleeding and paralysis but for administration of the aspirin, which prevented
clotting. According to the expert, in reasonable medical likelihood, Miller’s
injury was the result of Dr. Mullen’s administration of the aspirin.
Argument Texas appellate courts review summary judgments using a de novo standard of review. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862
(Tex. 2010). The issue on appeal is whether the movant met the summary
judgment burden by establishing that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Crocker v.
Babcock , 448 S.W.3d 159, 163 (Tex. App.—Texarkana 2014, pet. denied)
(citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d
844, 848 (Tex. 2009).
When reviewing a summary judgment, an appellate court takes as true all evidence favorable to the nonmovant and indulges every reasonable
inference in the nonmovant’s favor. Valence Operating Co. v. Dorsett , 164
S.W.3d 656, 661 (Tex. 2005). Evidence favoring the movant’s position will
not be considered unless uncontroverted. Great Am. Reserve Ins. Co. v. San
Antonio Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965).
Where a motion for summary judgment is based on different grounds
and the order granting the motion fails to specify its basis, the appellant must
show that each ground alleged in the motion is insufficient to support
summary judgment. Skiles v. Jack in the Box, Inc., 170 S.W.3d 173, 178
(Tex. App.—Dallas 2005, no pet.), rev’d on other grounds , 221 S.W.3d 566
(Tex. 2007).
To defeat a no-evidence motion for summary judgment, the nonmovant need only produce more than a scintilla of evidence to raise a
genuine issue of material fact on the challenged elements. T EX . R. C IV . P.
166a(i); Forbes, Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 172
(Tex. 2003). 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. Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706,
711 (Tex. 1997). 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.’” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003)
(quoting Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983)).
1. Miller presented evidence that Dr. Mullen acted with wilful and
wanton negligence.
Section 74.153 of the Texas Civil Practice and Remedies Code governs health care liability claims arising from the provision of emergency
medical care in a hospital. It provides that in such claims, the claimant may
prove deviation from the applicable standard of care “only if the claimant
shows by a preponderance of the evidence that the physician or health care
provider, with wilful and wanton negligence, deviated from the degree of
care and skill that is reasonably expected of an ordinarily prudent physician
or health care provider in the same or similar circumstances.” T EX C IV .
P RAC . & R EM . C ODE A NN . § 74.153 (West 2011 & Supp. 2015).
The meaning of “wilful and wanton negligence” under the statute is the same as gross negligence. Turner v. Franklin , 325 S.W.3d 771, 780-81
(Tex. App.—Dallas 2010, pet. denied). “Gross negligence, in turn, is
comprised of two elements—one objective and one subjective.” Id . at 781
(citation omitted).
“First, viewed objectively from the actor’s standpoint, the act or omission must depart from the ordinary standard of care to such an extent
that it creates an extreme degree of risk of harming others, considering the
probability and magnitude of the potential harm to others.” Id . (citing
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 248
(Tex. 2008) and Transp. Ins. Co. v. Moriel , 879 S.W.2d 10, 23 (Tex. 1994)).
Under this element, the defendant’s conduct must create an “extreme degree
of risk” and involve “the likelihood of serious injury” to the plaintiff. Id .
(citations omitted).
To meet the subjective component, the defendant must “have actual, subjective awareness of the risk involved and choose to proceed in conscious
indifference to the rights, safety, or welfare of others.” Id . (citations
omitted). “[T]he plaintiff must show that the defendant knew about the peril,
but his acts or omissions demonstrated that he didn’t care.” Id . at 782
(citations omitted).
No rule categorically prohibits resolving the wilful and wanton negligence inquiry by summary judgment. Id . at 783. But issues concerning
state of mind generally are best left to the finder of fact to resolve based on
all evidence and surrounding circumstances. Id . at 782-83. Consequently,
determining whether a defendant acted with wilful and wanton negligence
by summary judgment “usually will be inappropriate.” Id .
The Texas Supreme Court has recognized the practical difficulty of producing direct evidence of conscious indifference, short of an admission
by the defendant. Lee Lewis Constr., Inc. v. Harrison , 70 S.W.3d 778, 785
(Tex. 2001). Because direct evidence of state of mind rarely is available, it
can be proven by circumstantial evidence. Id .
The first prong of wilful and wanton negligence is the objective inquiry, requiring departure from the standard of care engendering an
“extreme degree of risk” and “likelihood of serious injury” to the plaintiff.
To meet this prong, Miller introduced testimony from Dr. James Vascik, a
board certified neurosurgeon with emergency room experience.
Dr. Vascik testified that Dr. Mullen’s standard of care in this case was not altered by the fact that he treated Miller in the emergency room. Dr.
Vascik testified that Dr. Mullen had ruled out life-threatening causes of
Miller’s chest pain before administering the aspirin, meaning he was faced
*15 with circumstances the same or similar to an emergency room neurosurgical
consultation. [26]
According to Dr. Vascik, the normal EKG should have told Dr.
Mullen to forego the aspirin and focus on hematoma. [27] Dr. Mullen had
known Miller likely was suffering a heart attack or hematoma—and the
EKG essentially ruled out the heart attack. [28] Dr. Vascik testified that Dr.
Mullen had no possible reason to give Miller aspirin at the time he did so:
Q: At the time that Dr. Mullen ordered 325 milligrams of aspirin for Mr. Miller, did he have any diagnostic result indicating that Mr. Miller was having a myocardial infarction?
A: No. I believe the only test that he ordered that was back was an EKG, which was rendered normal. [29]
When asked whether administration of 325 milligrams of aspirin to a patient
complaining of neck pain—but having a normal EKG result—was consistent
with the standard of care, Dr. Vascik replied: “Absolutely not.” [30]
As Dr. Vascik noted, then, Dr. Mullen administered the aspirin despite knowing Miller almost certainly was bleeding internally. Dr. Vascik testified
that a risk of bleeding occurs whenever a patient receives a cervical
*16 injection. [31] Indeed, according to Dr. Vascik, this risk is so extreme that
physicians will not even administer an ESCI if the patient has taken aspirin
during the preceding 24 hours. [32]
Based on these factors, Dr. Vascik concluded that: “Dr. Mullen in my opinion, based upon the medical records and now his own testimony in his
own deposition, took extreme risk by ordering aspirin for Mr. Miller. No
justification for this order exists in light of the normal EKG.” [33] According to
Dr. Vascik, the consequences engendered by this “extreme risk” were
“ potentially lethal ” to Miller. [34]
Dr. Vascik’s testimony constitutes more than a scintilla of evidence that, viewed objectively, Dr. Mullen departed from the applicable standard
of care to such an extent that he created an extreme risk of serious injury to
Miller. This satisfies the objective prong of the wilful and wanton
negligence standard, and is sufficient to defeat both the no-evidence and
traditional motions for summary judgment.
With respect to the subjective inquiry, Dr. Mullen sought to disprove this element through testimony from Dr. Vascik confirming that he took a
*17 number of steps that were “both medically indicated and correctly
performed.” [35] He then cited the following testimony by Dr. Vascik:
Q: Would you agreed, sir, there is no evidence in this case that Dr. Mullen did not care for this patient?
A: I see no such evidence.
Q: No evidence that suggests that Dr. Mullen intended the unfortunate outcome, true?
A: True.
Q: No evidence to suggest that Dr. Mullen was consciously aware or indifferent to Mr. Miller’s risk of paralysis?
A: True. [36]
Dr. Mullen argued that this testimony conclusively disproved wilful and
wanton negligence.
Initially, evidence that Dr. Mullen provided care to Miller—even taking steps that were medically indicated and correctly performed—does
not preclude a finding of wilful and wanton negligence as a matter of law.
Turner , 325 S.W.3d at 784 (citations omitted). As the Texas Supreme Court
has stated, “the fact that a defendant exercises some care does not insulate
the defendant from gross negligence liability.” Mobil Oil Corp. v. Ellender ,
968 S.W.2d 917, 923-24 (Tex. 1998). The focus is the defendant’s
*18 subjective mental state—not the defendant’s exercise of care. Turner , 325
S.W.3d at 784 (quoting Moriel , 879 S.W.2d at 20).
Similarly, the fact that Dr. Mullen did not intend to harm Miller does not preclude a finding of gross negligence. “Gross negligence does not
require proof that the defendant intended or tried to harm the plaintiff . . . .”
Turner , 325 S.W.3d at 784 (citation omitted). Evidence that a physician
“tried to care” for a patient and “did not intend to harm him” does not
disprove gross negligence as a matter of law. Id . at 784.
Finally, Dr. Mullen argued that Dr. Vascik’s testimony about conscious indifference disproved wilful and wanton negligence. But Dr.
Vascik’s speculation about Dr. Mullen’s state of mind could not possibly
prove or disprove anything. Indeed, such testimony legally constitutes no
evidence and can be challenged for the first time on appeal. See City of San
Antonio v. Pollock , 284 S.W.3d 809, 816 (Tex. 2009) (citation omitted). At
best, then, Dr. Vascik’s answer to this question simply constituted his
personal view of the evidence—hardly “proof” of anything.
Gross negligence requires that the defendant was subjectively aware of the risk involved and chose to proceed in conscious indifference to the
rights, welfare, and safety of others. Turner , 325 S.W.3d at 784 (citation
omitted). And Dr. Mullen himself provided testimony sufficient to create a
fact issue concerning his awareness of the risk involved and conscious
indifference to the potential harm to Miller.
Dr. Mullen admitted having two working diagnoses after initial examination of Miller: (1) heart attack, and (2) hematoma. [38] According to
Dr. Vascik, once Miller’s EKG came back normal, the risk of a heart attack
was minimal and the real risk shifted to bleeding in Miller’s cervical spine. [39]
Dr. Mullen conceded knowing that aspirin thins the blood by inhibiting the
clotting mechanism—he testified that administering aspirin to a patient who
is bleeding will intensify and lengthen the bleeding, [40] and that even small
doses can trigger this effect. [41] The more the patient bleeds, the more the
bleeding compresses the spinal cord. [42] The more the spinal cord compresses,
the greater the risk of paralysis. [43]
Based on his own testimony, then, Dr. Mullen admitted ordering the administration of aspirin even though he knew—
Miller had just received an ECSI, [44]
The most likely causes of Miller’s pain were a heart attack or internal bleeding from the ESCI, [45]
*20 Miller’s EKG was normal, suggesting that he was not suffering a heart attack, [46]
Administration of aspirin is “contraindicated” for patients experiencing bleeding because even low doses prevent blood from clotting, [47]
The more the patient bleeds, the more the bleeding compresses the spinal cord, [48] and
The more the spinal cord compresses, the greater the risk of paralysis. [49]
Yet he proceeded anyway. This evidence constitutes more than a mere
scintilla of circumstantial evidence that Dr. Mullen was subjectively aware
of the risk involved to Miller and chose to proceed in conscious indifference
to Miller’s safety. It also raises a fact issue sufficient to defeat the traditional
motion for summary judgment.
This case is factually and conceptually similar to Turner . There, a patient arrived at the emergency room complaining of pain and swelling in
his left testicle. The treating physician immediately suspected the patient had
either epididymitis (an inflammation treated routinely with antibiotics) or
testicular torsion (a condition that if left untreated for 4-6 hours results in
loss of the testicle). Turner , 325 S.W.3d at 774. The physician ordered pain
*21 medication and an ultrasound to rule out torsion. The radiologist on call
misinterpreted the ultrasound and reported no evidence of torsion, so the
physician diagnosed the patient with epididymitis and discharged him with a
prescription for antibiotics. Id . at 774-75. After losing the testicle, the patient
sued the physician for wilful and wanton negligence. Id . at 775.
The physician sought summary judgment, arguing there was no proof of wilful and wanton negligence. He relied principally on testimony from the
plaintiff’s expert witness that he made the “wrong call” but did not
demonstrate a “complete want of care” for the patient. The physician argued
this negated the subjective component of gross negligence. Id . at 783. The
Dallas Court of Appeals disagreed, holding that the physician failed to
disprove gross negligence as a matter of law. Id . at 783-84.
The El Paso Court of Appeals reached a similar result in Sage v. Howard , 465 S.W.3d 398 (Tex. App.—El Paso 2015, no pet.). In that case,
the patient alleged that he sustained a fracture during hip surgery performed
by an emergency room physician. The physician sought and obtained
summary judgment based on lack of wilful or wanton negligence. As in this
case, no evidence suggested the physician did not care for the patient or
intended to cause his injuries. The court of appeals reversed, holding that the
physician’s decision to perform the surgery without an x-ray, along with
expert testimony about the dangers of doing so and the physician’s
admission that he knew performing the procedure could result in a fracture,
constituted more than a scintilla of evidence that the physician proceeded in
conscious indifference of the patient’s rights, safety, or welfare.
As in Turner , Dr. Mullen simply failed to disprove the possibility of gross negligence. As in Sage , more than a scintilla of evidence exists of
wilful and wanton negligence. Dr. Mullen may ultimately prevail on this
issue, but the issue—at least on this record—must be resolved by the jury.
2. Miller presented evidence of causation.
A medical malpractice claim requires proof that the defendant’s breach of the standard of care caused the claimed injury. See Fougth v.
Solce, 821 S.W.2d 218, 219 (Tex. App.—Houston [1st Dist.] 1991, writ
denied). To satisfy this burden, the plaintiff must show to a reasonable
degree of medical probability that the injuries and damages claimed were
proximately caused by the defendant’s breach of the standard of care. See
Park Place Hosp. v. Milo , 909 S.W.2d 508, 511 (Tex. 1995) (citation
omitted).
Dr. Mullen argued that Dr. Vascik’s testimony failed to establish causation within reasonable medical probability. [50] Dr. Mullen relied on the
following testimony from Dr. Vascik:
Q: But we don’t really know, do we sir? I mean, the fact of the matter was he was bleeding for some two hours before he presented to the Emergency department. He had ten out of ten pain. There is no question that he was going to have to be transferred to a higher level facility.
A: I agree.
Q: And there are patients that have this exact same complication without aspirin on board that end up paralyzed, true.
A: Absolutely. [51]
. . . Q: Would you agree, we don’t know one way or the other whether or not Mr. Miller would have had the same outcome regardless of the aspirin?
A: Fair enough.
Q: In other words, we can’t say within reasonable medical probability that the same sequella ( sic ) wouldn’t have occurred even without the aspirin, true?
A: Correct.
. . . *24 Q: How much damage in your opinion was directly attributable to the aspirin alone?
A: We don’t know because I don’t have a controlled comparison to see what would have happened had he had his MRI scan without the aspirin onboard.
Q: There is not any way mathematically to calculate how much worse Mr. Miller was as a result of the aspirin administration?
A: There is not.
. . . Q: Can you cite me to any literature that tells me how much worse Mr. Miller’s condition because as a result of the aspirin?
A: Of course not. But the summary judgment motion did not mention Dr. Vascik’s answers to several other questions that followed:
Q: Would you agree with me that within a reasonable medical probability, that Mr. Miller would have had the exact same outcome even without the aspirin onboard?
. . .
A: No, I don’t believe that.
Q: Why? *25 A: Because the aspirin continued the bleeding. It did not allow for a thrombus to develop that may have stopped the bleeding short of the development of paralysis and short of the development of the size of a clot that would require surgery.
. . . Q: What if any significance is it to you that after the administration of aspirin Mr. Miller was found to have developed weakness?
A: It is very important. It indicates to me that the aspirin inhibited the clotting mechanism, which allowed the patient to continue to bleed and that at some point that bleeding reached a critical mass and compressed the spinal cord.
Q: I am going to ask you – I am going to give you a definition. I would like you to assume for me . . . that the definition of proximate cause is a cause that was a substantial factor in bringing about an event and without which such event would not have occurred . . . Now in order to be a proximate cause, the act or omission complained of must be such that . . . a neurosurgeon using ordinary care would have foreseen the event or some similar event might reasonably result therefrom . . . Given that assumption, the definition of proximate cause, can you tell me whether or not Mr. Miller’s paralysis of his lower extremities was proximately caused by Dr. Mullen’s prescription and subsequent administration of aspirin?
. . . *26 A: Yes . . . it is my opinion that but for the inhibition of the clotting mechanism, this aspirin, I believe it is more likely than not that he would not have been paralyzed.
Q: And can you give me the medical basis for your conclusion that more likely than not he would not be paralyzed had he not taken the aspirin?
. . . A: We know that before the epidural steroid injection on the 22nd, that he obviously was not on an anticoagulant on anti-platelet drug when the administration of the steroid injection would have been placed. We also know that subsequently that he developed an epidural blood clot that was more likely than not present when he presented to the emergency room; but since he had normal clotting functions, it is also likely that he would have stopped bleeding on his own at some point. The administration of aspirin precluded that happening.
Dr. Vascik went on to testify that: “[T]he bleeding either became more
active or reached a critical mass and compressed the spinal cord as a direct
result of that aspirin administration .” According to Dr. Vascik, “[t]he
administration of aspirin in this case prevented the normal human clotting
mechanism to ‘kick in’ and stop the active bleeding . . . Had the aspirin not
been administered, it is reasonably medically probable that the blood clot
*27 would not have continued to increase in size, and the operative surgeon
would not have had difficulty in controlling the bleeding.”
Even Dr. Mullen conceded that a coagulation study performed at 11:10 a.m., before administration of the aspirin, showed Miller was not
having a prolonged clotting time. This constituted further evidence
supporting Dr. Vascik’s conclusion that the prolonged bleeding would not
have occurred but for administration of the aspirin.
Dr. Vascik was not required to state his opinion in terms of any special phrase or specific percentage of probability; such a requirement
would elevate the form of an expert’s testimony over its substance. See
Lenger v. Physician’s Gen. Hosp., Inc. , 455 S.W.2d 703, 707 (Tex. 1970).
The standard simply requires testimony, with a sufficient basis, that the
negligence was a substantial factor in causing the injury, and that the injury
would not have occurred without it. Kramer v. Lewisville Mem. Hosp. , 858
S.W.2d 397, 400 (Tex. 1993) (citations omitted).
Dr. Vascik was unequivocal in stating his opinion that neither the prolonged bleeding nor the paralysis would have occurred but for Dr.
Mullen’s administration of the aspirin. Dr. Vascik explained the basis for
that opinion. This testimony constitutes legally sufficient evidence sufficient
*28 to overcome the no-evidence motion, and creates a fact issue sufficient to
defeat the traditional motion.
Conclusion The trial court erred in granting summary judgment. As a result, the trial court’s judgment should be reversed and the case should be remanded
for further proceedings.
Respectfully submitted, /s/Charles “Chad” Baruch Texas Bar Number 01864300 J OHNSTON T OBEY B ARUCH , P.C.
3308 Oak Grove Ave Dallas, Texas 75204 Telephone: (214) 741-6260 Facsimile: (214) 741-6248 Email: chad@jtlaw.com Counsel for Appellant Certificate of Compliance This brief was prepared using Microsoft Word. Relying on the word count function in that software, I certify that this brief contains 4,427 words
(excluding the cover, tables, signature block, and certificates).
/s/Charles “Chad” Baruch *29 Certificate of Service
The undersigned certifies that a true and correct copy of this instrument was served this 2nd day of December, 2015, by efiling and by
email upon the following counsel of record:
Russell W. Schell rschell@schellcooley.com Stephani R. Johnson
sjohnson@schellcooley.com S CHELL C OOLEY , LLP
15455 Dallas Parkway, Suite 550 Addison, Texas 75001
/s/Charles “Chad” Baruch *31 CAUSI~ NO. 36865
FRANKIE MARIE MILLER, Ind. and as § IN THE DISTRICT COURT OF
Personal Representative of the Estate of §
T. J. MILLER, § §
Plaintiff,,
§
v. § TITUS COUNTY, TEXAS
§
JOHN B. MULLEN, M.D., and §
TITUS REGIONAL MEDICAL CENTER § 76'h JUDICIAL DISTRICT §
Defendants.
FINAL JUDGMENT Came on to be heard Defendant Janie Mullen as the Executor of the Estate of John B. Mullen M.D.'s Motion lor Summary Judgment. The Court. having considered the motion and evidence and
Plaintiffs Response, is of the opinion that the Motion is well taken and is GRANTED AND
.JUDGMENT SHOULD BE ENTERED IN FAVOR OF DEFENDANT, .JANIE MULLEN AS
EXECUTOR OF THE ESTATE OF .JOHN B. MULLEN, M.D. It is therct[,re,
ORDERED, ADJUDGED AND DECREED that Defendant's Motion for Summary Judgment is GRANTED and that Plaintiff's claims are fully and finally disposed of on the merits
and cannot be raised at a later date. This Order is a FINAL JUDGMENT in fitvor of Defendant.
,-fl, 0 - day of~L-f'------rT--
SIGNED this FINAL JUDGMENT Page 1
494631.1/ 405.012 9
[1] C.R. 6-18, 63-74.
[2] C.R. 75-79.
[3] App. 1; C.R. 380.
[4] C.R. 405-06.
[5] C.R. 122, 126, 286-367.
[6] C.R. 256-57.
[7] C.R. 118, 130.
[8] C.R. 116-18, 239.
[9] C.R. 116, 122, 132.
[10] C.R. 123, 125, 246.
[11] C.R. 122, 245, 247-48.
[12] C.R. 118, 130, 235.
[13] 121-22, 132, 243, 244.
[14] C.R. 235-38.
[15] C.R. 249.
[16] C.R. 115, 130.
[17] C.R. 123.
[18] C.R. 123-24, 126.
[19] C.R. 283.
[20] C.R. 284.
[21] C.R. 6-18, 45-57, 63-74. Miller also sued Titus Regional Medical Center but nonsuited those claims. C.R. 40-44.
[22] C.R. 80-208.
[23] App. 1; C.R. 380.
[24] C.R. 251, 255, 263.
[25] C.R. 265.
[26] C.R. 280.
[27] C.R. 276-77.
[28] C.R. 279.
[29] C.R. 203.
[30] C.R. 204.
[31] C.R. 270.
[32] C.R. 270-71.
[33] C.R. 375 (emphasis added).
[34] C.R. 204 (emphasis added).
[35] C.R. 90.
[36] C.R. 185.
[37] C.R. 82-91.
[38] C.R. 118, 130.
[39] C.R. 204.
[40] C.R. 115.
[41] C.R. 115.
[42] C.R. 199.
[43] C.R. 131.
[44] C.R. 122, 245, 247-48.
[45] C.R. 118, 130, 235.
[46] 121-22, 132, 243, 244.
[47] C.R. 235-38.
[48] C.R. 199.
[49] C.R. 249.
[50] C.R. 93-94.
[51] C.R. 182.
[52] C.R. 183.
[53] C.R. 183.
[54] C.R. 183.
[55] C.R. 259-60.
[56] C.R. 272.
[57] C.R. 273-74 (emphasis added).
[58] C.R. 275 (emphasis added).
[59] C.R. 283.
[60] C.R. 241-42.