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Kyle v. Hillery

Court of Appeals of Texas, First District

February 22, 2018


         On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 10-DCV-186324

          Panel consists of Justices Jennings, Massengale, and Caughey.



         This is an appeal from the trial court's order granting summary judgment in favor of appellees Robert Hillery, M.D. and Southwest Surgical Associates, L.L.P. (collectively "Hillery"). Appellants Suzette Kyle, Patrice Ward, Vicki Kyle, and Jamessee Kesee, individually and on behalf of the estate of Melinda Kyle, deceased, sued Hillery for medical malpractice. Hillery moved for no-evidence and traditional summary judgment, and the trial court granted the motion. Appellants filed a timely appeal. Because the trial court properly granted summary judgment in favor of Hillery, we affirm.


         In September 2008, Oak Bend Medical Center admitted 69-year-old Melinda for treatment of her gangrenous left foot. After initial medical treatment and procedures failed, Dr. Tripathy consulted with Dr. Hillery about a below-knee amputation. Dr. Hillery performed the amputation. After the procedure, the hospital temporarily placed Melinda in the intensive care unit ("ICU"). She then moved to a regular floor. While she was in the hospital, she went into respiratory and cardiac arrest and died.

         Before the amputation, Melinda was being administered an anticoagulant, Heparin. One of Melinda's doctors-not Dr. Hillery-stopped this medication before the amputation. No one prescribed this medicine after her surgery.

         After Melinda's death, appellants sued Hillery, contending that Melinda's death was the result of a pulmonary embolus that, appellants assert, was caused by Hillery's negligent failure to restart the administration of an anticoagulant after the amputation.

         Hillery moved for traditional and no-evidence summary judgment. In his no-evidence motion, Hillery argued that there was no evidence of causation. In his traditional motion, Hillery argued that the evidence conclusively proved that he was not negligent and that his actions were not the cause of Melinda's death. The trial court granted the motion without specifying its reasons. Appellants appealed.


         In their sole issue, appellants contend that the trial court erred by granting summary judgment. Because appellants presented no evidence showing that there was a reasonable medical probability that Hillery's alleged negligence-failing to re-prescribe anticoagulants-proximately caused Melinda's death, we affirm.

         A. Standard of Review

         We review a trial court's summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

         To prevail on a no-evidence motion for summary judgment, the movant must establish that there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

         "No evidence" points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) (citation omitted). "When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Id. (citation omitted). Likewise, "[w]hen the circumstances are equally consistent with either of two facts, neither fact may be inferred." Id. (citation omitted).

         B. Applicable Law

         In a medical malpractice case, the plaintiff must prove that (1) the defendant owed him a duty to act according to an applicable standard of care, (2) the defendant breached the applicable standard of care, (3) he suffered an injury, and (4) within a reasonable medical probability, the defendant's breach proximately caused his injury. Tejada v. Gernale, 363 S.W.3d 699, 708-09 (Tex. App.-Houston [1st Dist.] 2011, no pet.)

         We focus on causation here. Medical malpractice plaintiffs "are required to adduce evidence of a 'reasonable medical probability' or 'reasonable probability' that their injuries were caused by the negligence of one or more defendants." Jelinek, 328 S.W.3d at 532-33. This standard requires plaintiffs to prove that it is "more likely than not" that the ultimate harm or condition resulted from the negligence at issue. Id. at 533; Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 399-400 (Tex. 1993) (citations omitted). 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 about the injury. Bustamante v. Ponte, 529 S.W.3d 447, 457 (Tex. 2017).

         Moreover, in a medical malpractice case, proximate cause must be established through expert testimony. Tejada, 363 S.W.3d at 709; see Jelinek, 328 S.W.3d at 533-34. "[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." Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 707 (Tex. 1970); see Jelinek, 328 S.W.3d at 536. Similarly, the causal connection between the defendant's negligence and the injuries cannot be based upon mere conjecture, speculation, or possibility. Morrell v. Finke, 184 S.W.3d 257, 272 (Tex. App.-Fort Worth 2005, pet. denied) (first citing Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); then citing Lenger, 455 S.W.3d at 706; then citing Marvelli v. Alston, 100 S.W.3d 460, 470 (Tex. App.- Fort Worth 2003, pet. denied)). "Perhaps, " "possibly, " "can, " and "could" indicate mere conjecture, speculation, or possibility rather than qualified opinions based on reasonable medical probability. W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 58 (Tex. App.-El Paso 2010, no pet.); see also Columbia Med. Ctr. of Las Colinas ...

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