SUZETTE KYLE, PATRICE WARD, VICKI KYLE, AND JAMESSEE KESEE, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF MELINDA KYLE, DECEASED, Appellants
ROBERT HILLERY, M.D. AND SOUTHWEST SURGICAL ASSOCIATES, L.L.P., Appellees
Appeal from the 240th District Court Fort Bend County, Texas
Trial Court Case No. 10-DCV-186324
consists of Justices Jennings, Massengale, and Caughey.
JENNIFER CAUGHEY JUSTICE.
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,
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.
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.
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.
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.
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.
Standard of Review
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).
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.
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).
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.)
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).
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 ...