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Gunn v. McCoy

Supreme Court of Texas

June 15, 2018

Debra C. Gunn, M.D., Obstetrical and Gynecological Associates, P.A., and Obstetrical and Gynecological Associates, P.L.L.C., Petitioners,
v.
Andre McCoy, as Permanent Guardian of Shannon Miles McCoy, an Incapacitated Person, Respondent

          Argued February 8, 2018

          On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

          Justice Green delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Brown, and Justice Blacklock joined.

          Paul W. Green Justice.

         This is a medical-malpractice case involving multiple issues. Shannon McCoy (Shannon) was thirty-seven weeks pregnant and under the prenatal obstetrical care of Dr. Debra Gunn, an obstetrician and gynecologist (ob/gyn) associated with Obstetrical and Gynecological Associates, P.A. (OGA). Shannon presented herself to the hospital with severe abdominal pain, where doctors determined that she had suffered placental abruption and that her fetus was not viable. Both during and after delivery, Shannon experienced complications that led to brain damage, quadriplegia, and later, her death. Acting as her guardian, Shannon's husband, Andre McCoy (McCoy), sued the hospital and several attending doctors, including Dr. Debra Gunn, and their medical practice groups, including OGA.

         The following issues are before us: (1) whether the court of appeals erred in holding that there was legally sufficient evidence of causation; (2) whether the trial court committed reversible error in excluding deposition testimony of the defendants' expert witness regarding future medical expenses; (3) whether the medical billing affidavits providing proof of past medical expenses were proper under Texas Civil Practice and Remedies Code section 18.001; (4) whether the trial court erred in refusing to instruct the jury on unavoidable accident; (5) whether the trial court erred in granting McCoy's no-evidence summary judgment as to the defendants' affirmative defense of comparative responsibility; (6) whether OGA's indemnity claims were properly asserted post-verdict; and (7) whether Shannon's death on the eve of the court of appeals' decision created a windfall for McCoy that calls for a remand in the interest of justice.

         We agree with the court of appeals' holdings that the evidence of causation was legally sufficient, that the affidavits submitted by McCoy were proper under section 18.001, that the trial court did not commit reversible error in refusing the requested instruction on unavoidable accident, and that OGA's indemnity claim against Dr. Gunn was properly asserted. We hold that the trial court erred in excluding the video deposition testimony of the defendants' expert witness; however, the error did not probably cause the rendition of an improper judgment. We reject Dr. Gunn's argument that Shannon's death created a windfall for McCoy, and we hold that Dr. Gunn waived her argument with regard to the trial court's summary judgment on comparative responsibility. Therefore, we affirm the judgment of the court of appeals.

         I. Background

         Shannon McCoy was thirty-five years old and pregnant with her first child. Dr. Gunn, an ob/gyn associated with OGA, provided prenatal and obstetrical care to Shannon. Shannon first saw Dr. Gunn in March 2004, when she was estimated to be roughly nine weeks into her pregnancy. Her pregnancy was generally uneventful until September 13, 2004, when she was thirty-seven weeks into her pregnancy. On that morning, Shannon went to a routine prenatal visit with Dr. Gunn and everything appeared normal. Dr. Gunn ordered lab tests as a precautionary measure to check for hypertension; the lab results indicated that Shannon's hemoglobin level was 9.5.[1] That evening, Shannon presented to the Woman's Hospital of Texas with severe abdominal pain. She was admitted at 8:50 p.m., and Dr. Mark Jacobs, the ob/gyn on call, ordered an ultrasound and discovered that the fetus had died due to placental abruption, a condition in which the placenta detaches from the uterine wall. Dr. Jacobs ordered lab tests, which indicated that Shannon had developed disseminated intravascular coagulation (DIC), a blood-clotting disorder which causes both abnormal blood clotting throughout the body and profuse bleeding. DIC can occur for multiple reasons, including placental abruption. There is no dispute that in Shannon's case, DIC was not the fault of any party.

         Dr. Jacobs consulted with Dr. Brian Kirshon, a maternal/fetal medicine specialist, and the two doctors ordered a blood-product replacement plan to counter Shannon's DIC. Exactly how much blood Shannon lost and how much she received in the following hours-and how much she should have received-are heavily disputed. Some of this dispute stems from confusion in terminology between the parties and the court of appeals with respect to "blood" and "blood products." At no point did Shannon receive transfusions of whole "blood." Instead, it is undisputed that Shannon received the following components of blood, or "blood products": (1) packed red blood cells, which carry oxygen via hemoglobin to the body's organs; (2) fresh frozen plasma (FFP), which contains factors that promote the clotting process; and (3) platelets, which are cell fragments that also promote the clotting process. Once separated from whole blood, the blood products are diluted with intravenous (IV) fluid before they are transferred to the patient. Dr. Kirshon recommended that Shannon receive two units of FFP and two units of packed red blood cells "in light of the DIC." On Dr. Jacobs' order, FFP was given at 3:07 a.m. and 3:21 a.m., and the packed red blood cells were given at 3:56 a.m. and 4:50 a.m. Dr. Kirshon included the following recommendation: "I would have more blood products available and be on the look out for major postpartum hemorrhage."

         Dr. Gunn arrived at the hospital around 4:00 a.m. on September 14 and assumed care of Shannon. Dr. Gunn consulted with Dr. Kirshon, and they agreed that vaginal delivery was necessary because of Shannon's DIC. They hoped, as is often the case with placental abruption and DIC, that the DIC would self-correct after delivery. Shannon delivered a stillborn baby girl at 6:20 a.m. Nurses documented a verbal order from Dr. Gunn at 7:20 to give Shannon two more units of packed red blood cells and to draw blood for lab tests. The lab results indicated that Shannon had experienced significant blood loss, as measured by her hemoglobin level, and that her blood was not clotting normally. Specifically, the lab results indicated that Shannon's hemoglobin level had dropped to 5.5, as compared to the lab results from Shannon's prenatal visit the day before, when her hemoglobin level was 9.5. According to McCoy's expert, "for every one point that the hemoglobin goes down, that's approximately equal to one unit of blood" lost. The use of hemoglobin as an indicator of blood volume, however, is disputed by Dr. Gunn. Nurses documented a verbal order from Dr. Gunn at 9:00 a.m. to give Shannon four units of platelets, and another verbal order at 10:15 a.m. to give an additional two units of packed red blood cells, for a total of six units of packed red blood cells. No additional FFP was given to Shannon after the two units ordered by Dr. Jacobs. At 10:50 a.m., the nurses reported a decrease in urine output, and Dr. Gunn ordered that Shannon be given Lasix, a diuretic.

         Shortly after 11:00 a.m., Shannon's condition was considered stable and post-labor bleeding appeared to have lessened, so Dr. Gunn authorized her transfer to the intensive care unit (ICU). At 12:00 p.m., nurses documented that Shannon's uterus was "boggy" and that she received uterine massage to induce firmness. Nurses documented a "large amount of bleeding and clots." At 12:10 p.m., Shannon's temperature increased and her heart rate accelerated to over 200 beats per minute. Dr. James Collins, a cardiologist who was covering the ICU, ran an electrocardiogram (EKG) and concluded that Shannon was experiencing paroxysmal atrial tachycardia, or elevated heart rate. Dr. Collins administered Digoxin to lower her heart rate, and Dr. Gunn ordered that Shannon receive uterine massage every fifteen minutes to encourage the uterus to contract. At that time, Shannon was responsive, and her blood pressure and oxygen saturation-the amount of blood that is saturated with oxygen (95-99% for most people)-were both within normal limits. Her heart rate slowed to an appropriate rate after a second dose of Digoxin.

         At 12:45 p.m., Shannon's uterus remained boggy upon uterine massage and nurses documented another "large amount [of] bleeding and clots." Around 1:00 p.m., nurses reported that Shannon's blood pressure had dropped to 106 over 60, that she was "agitated, " and that her oxygen saturation rate was down to 72%. Lab tests ordered at 1:16 p.m. revealed that Shannon's hemoglobin levels had increased to 7.5, but her prothrombin time (PT), which measures whether blood is clotting properly, was outside the normal range. The normal PT range is 10.8 to 13.5 seconds; Shannon's was 18.2 seconds. Moreover, her creatinine levels had increased from 1.1 to 1.9, indicating that her kidneys were not receiving adequate blood flow. Nurses documented at 1:15 p.m., and again at 1:30 p.m., that Shannon "cont[inued] to bleed [a] mod[erate] amount." Dr. Gunn consulted with Dr. Kirshon, and they agreed that Shannon had been given the maximum amount of contractile drugs. They concluded that she had developed uterine atony, a loss of muscle tone in the uterus that prevents it from contracting and clamping down, resulting in excessive blood loss. She was experiencing significant obstetric hemorrhage. Dr. Gunn arranged for a hysterectomy to remove Shannon's failing uterus and ordered a blood emergency, alerting the blood bank "to prepare every unit [of blood products] that could be used with Shannon."

         As the doctors moved Shannon from the ICU to the operating room, she was responsive, but she continued to hemorrhage. According to the operative report, "[t]he ICU bed had blood throughout from the head of the bed to the foot." Dr. Gunn continued to massage Shannon's uterus even after Shannon was moved to the operating table. Immediately after anesthesia was given, Shannon went into ventricular fibrillation, where her heart was unable to pump blood. The anesthesiologists present performed CPR for seven minutes and delivered Shannon oxygen through a breathing tube. Her hemoglobin level at that time had dropped to 4.0, "evidence of uterine atony associated with the rapid loss of blood." Once Shannon was stabilized with blood products infusing, Dr. Gunn performed the hysterectomy.

         Later that evening, in the ICU, Shannon experienced seizure activity. A neurology consult was called, and the neurologist concluded that this activity was probably a sign of hypoxic encephalopathy, or decreased oxygen to the brain. An electroencephalogram (EEG) was ordered, and the results were consistent with "severe depression of cerebral function, most probably an anoxic basis at least in part."[2] Shannon's blood gases showed that she was acidotic, meaning she had a dangerously low pH resulting from a lack of oxygen. Shannon was transferred to the neurological ICU at St. Luke's Hospital. She received months of rehabilitative treatment at St. Luke's, Select Specialty Hospital, and The Institute for Rehabilitation and Research. Her condition after the initial injury was assessed as a "persistent state of vegetation." Her husband testified to carrying out his wife's daily routine of personal hygiene, grooming, and dressing in the months and years after the injury. Simply put, she required twenty-four-hour care and remained "total[ly] dependent for all basic and higher level activities of daily living." The record suggests that Shannon initially experienced some improvement, including visual tracking, limited controlled movements, and producing words. However, in 2005-roughly a year after the initial injury-Shannon was hospitalized for a seizure which resulted in an episode of hypoxia, and she never recovered her previous improvement.[3]

         McCoy, acting individually and as Shannon's guardian, sued Woman's Hospital, Dr. Gunn, Dr. Jacobs, Dr. Collins, and OGA. Prior to trial, Dr. Collins was dropped from the pleadings, and Woman's Hospital and Dr. Jacobs each settled with McCoy for a total of $1, 206, 773.50. Dr. Gunn and OGA asserted the affirmative defense of comparative responsibility, claiming that McCoy, his family members, the treating labor-and-delivery nurses, and Dr. Collins were negligent and that their negligence contributed to Shannon's brain damage. McCoy filed a no-evidence motion for summary judgment on this affirmative defense, which the trial court granted. Testimony at trial was hotly disputed. Ultimately, the jury returned an eleven-to-one verdict in favor of McCoy as to Dr. Gunn's negligence and awarded $10, 626, 369.00 in damages. The award included $703, 985.98 for past medical expenses and $7, 242, 403.00 for future medical expenses. The trial court applied a dollar-for-dollar settlement credit to offset the verdict in the amount of $1, 206, 773.50. The court ruled that OGA was vicariously liable for Dr. Gunn's negligence and ordered that the two defendants were jointly and severally liable.

         The verdict spawned a series of new litigation tactics by McCoy, who joined a number of parties to the case after the verdict and delayed the entry of judgment for nearly two years. McCoy filed amended petitions adding new defendants to the case and seeking to collect the damages awarded in the verdict from them. Ultimately, the trial court granted summary judgment in favor of the new defendants and the court of appeals affirmed. McCoy v. FemPartners, Inc., 484 S.W.3d 201, 214 (Tex. App.-Houston [14th Dist.] 2015, no pet.). OGA filed post-verdict claims for indemnity against Dr. Gunn and legal malpractice claims against its former defense counsel, [4] but later dismissed its legal malpractice claims. The trial court signed the final judgment in 2013, two years after the verdict was issued, and included an order that OGA was entitled to indemnity from Dr. Gunn.

         Dr. Gunn and OGA appealed, raising several issues. Both argued that: (1) there was no evidence of causation; (2) the trial court should not have granted summary judgment on comparative responsibility; (3) the court should not have excluded Dr. Helen Schilling's testimony regarding Shannon's future medical expenses; (4) the court should have submitted various jury instructions; and (5) the evidence was legally and factually insufficient to support Shannon's past medical expenses. 489 S.W.3d 75, 83 (Tex. App.-Houston [14th Dist.] 2016, pet. granted). Dr. Gunn also argued that OGA's indemnity claim was not ripe. Id. The court of appeals held that the evidence was legally insufficient to support the full award of $7, 242, 403.00 for future medical expenses. Id. at 117. It suggested a voluntary remittitur of $159, 854.00, which McCoy timely remitted. Id. The court of appeals overruled the remaining issues. Id. at 95, 101, 110, 117. Accordingly, it modified the trial court's judgment to reduce the award of future medical expenses to $7, 082, 549.00 and affirmed the judgment as modified. Id. at 117. Shannon continued to require around-the-clock care until her death on December 12, 2015, ten days before the court of appeals issued its original decision. We granted OGA's and Dr. Gunn's petitions for review. 61 Tex. Sup. Ct. J. 114 (Dec. 8, 2017).

         II. Causation

         As their first issue, Dr. Gunn and OGA each argue that the evidence was legally insufficient to support the jury's finding that Dr. Gunn's alleged negligence caused Shannon's brain damage. In a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded fact finder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient to support a jury finding when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Bustamante v. Ponte, 529 S.W.3d 447, 455-56 (Tex. 2017); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The record contains more than a mere scintilla of evidence when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc., 118 S.W.3d at 751. Conversely, the record contains less than a scintilla when the evidence offered to prove a vital fact's existence is "so weak as to do no more than create a mere surmise or suspicion." Id. All the record evidence must be considered "in the light most favorable to the party in whose favor the verdict has been rendered, " and "every reasonable inference deducible from the evidence is to be indulged in that party's favor." Bustamante, 529 S.W.3d at 456 (quoting Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

         Recovery in a medical-malpractice case requires proof to a reasonable medical probability that the injuries complained of were proximately caused by the negligence of a defendant. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 860 (Tex. 2009). Proximate cause includes two components, cause-in-fact and foreseeability. Id. Proof that negligence was a cause-in-fact of the injury requires proof that (1) the negligence was a substantial factor in causing the injury, and (2) without the act or omission, the harm would not have occurred. Id. Thus, to satisfy a legal sufficiency review in such cases, plaintiffs must "adduce evidence of a 'reasonable medical probability' or 'reasonable probability' that their injuries were caused by the negligence of one or more defendants, meaning simply that it is 'more likely than not' that the ultimate harm or condition resulted from such negligence." Bustamante, 529 S.W.3d at 456 (quoting Jelinek v. Casas, 328 S.W.3d 526, 532-33 (Tex. 2010)). In medical-malpractice cases, the general rule is that "expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors." Jelinek, 328 S.W.3d at 533.

         The parties offer competing theories on causation. The court of appeals articulated McCoy's theory, which the jury apparently accepted:

McCoy's causation theory is that Gunn failed to adequately treat Shannon's DIC by failing to order FFP to replace Shannon's clotting factors and slow her bleeding, and by failing to infuse enough units of blood. As Shannon continued to bleed, her body attempted various compensation mechanisms in an effort to maintain enough oxygen flow to avoid cardiovascular collapse and damage to her critical organs. However, Shannon continued to lose blood volume. As her blood volume loss approached the critical danger zone of approximately 40%, Shannon's body could no longer compensate, resulting in her cardiac arrest, lack of oxygen flow to her brain, and her permanent brain damage.

489 S.W.3d at 90. Dr. Gunn and OGA advanced a different theory-that Shannon's DIC caused small blood clots to form in Shannon's vascular system and some of those small clots lodged in blood vessels in Shannon's brain, resulting in her injuries. We summarize the evidence supporting the parties' arguments.

         A. McCoy's Theory

         For the standard of care and Dr. Gunn's alleged failure to meet it, McCoy relied upon the testimony of Dr. Molly Brewer, a medical doctor board certified in both obstetrics and gynecology and gynecological oncology. Dr. Brewer underwent specific training in handling DIC patients, and she taught "how to handle DIC from placental abruption and other causes" to other ob/gyns.

         Dr. Brewer testified that DIC impacts the body's ability to clot, which puts people at risk of bleeding because their clotting factors are no longer working properly. She stated that Shannon "absolutely" had DIC. Dr. Brewer estimated Shannon's blood volume based on her hemoglobin levels, explaining that "for every one point that the hemoglobin goes down, that's approximately equal to one unit of blood." She explained that doctors cannot always look at a patient and know if they are bleeding; therefore, doctors must rely on lab results, specifically hemoglobin levels, to approximate blood volume and blood loss.

         Based on this underlying assumption, Dr. Brewer testified that the decreased hemoglobin levels shown in Shannon's lab results indicated that she was losing blood. Specifically, the lab tests ordered at 7:20 a.m. indicated that Shannon's hemoglobin levels had dropped from 9.5 to 5.5, which "should have put [Dr. Gunn] into almost panic mode." Dr. Brewer testified that by 1:00 p.m., Shannon had lost about 33 to 44% of her blood volume. Lab results also indicated that Shannon's PT had increased, meaning that her blood was not clotting properly. Because DIC interfered with Shannon's body's clotting ability, Dr. Brewer stated that it was critical that she receive FFP and that Dr. Gunn breached the standard of care by failing to order or administer FFP in response to Shannon's lab results.

[Y]ou can replace blood until the cows come home, but if you can't clot and you have an open wound like inside the uterus, they're going to continue to bleed. And so you basically put the blood in and the blood comes out, and without the clotting factors, you cannot control this coagulation disorder.

         According to Dr. Brewer, a reasonable and prudent physician managing DIC should be making calculations based on hemoglobin levels to justify blood transfusions (e.g., "her hemoglobin went from x to y and therefore, we assume that she's lost two units, three units, four units, and then it's appropriate to replace it"). She testified that Dr. Gunn breached the standard of care by failing to do these calculations and, on a broader level, by failing to create and document a cohesive plan to manage Shannon's DIC.

         Additionally, Dr. Brewer believed Shannon's lab results in the morning and the afternoon with respect to her other vital functions should have alerted Dr. Gunn that Shannon was losing blood due to her body's inability to clot. Dr. Brewer reported that Shannon's increased creatinine levels indicated that she had "acute renal failure, " which, read in the context of DIC, tells us "[t]hat [she] probably doesn't have enough blood flow through [the] kidneys." She also pointed to Shannon's decreased oxygen saturation levels and her increased heart rate, describing these phenomena as compensation mechanisms to deal with low blood volume. "[I]f their blood is low, their heart rate goes up to get more blood. . . . If their oxygen is low, they breathe harder because it brings in more oxygen. . . . [T]hey actually shunt blood away from their kidneys because they want to spare the heart and . . . the brain." Dr. Brewer stated that Shannon's low urine output was another sign of decreased blood flow to the kidneys, which should have been a warning sign. Instead of properly treating Shannon's low blood volume, Dr. Gunn administered Lasix, which is "for fluid overload" and probably made it worse for Shannon. She testified that a reasonable and prudent physician needs to stay equal with or ahead of blood loss in managing a patient like Shannon, and in this case, "Shannon was behind in her blood volume all the way along."

         According to Dr. Brewer, Dr. Gunn's failure to replace Shannon's clotting factors by administering FFP contributed to her developing uterine atony. In the afternoon, Shannon became agitated. Dr. Brewer described this as one of the cardinal signs "that she's going into cardiovascular collapse. I mean, something terrible has happened. Patients get agitated when they don't get enough oxygen." When asked about Shannon's oxygen saturation level of 72%, Dr. Brewer responded, "I think it's a crisis." Dr. Brewer testified that after about 1:00 p.m., "the d[i]e was cast with reasonable certainty. I mean, they were in serious trouble. This woman was dying in front of their eyes. I mean, she had blood pouring out." In looking at the whole picture and at the blood loss, Dr. Brewer said it was foreseeable that Shannon would go into ventricular fibrillation. "The problem was [] she had lost so much blood at that point that it was a disaster."

         Dr. Brewer stated that Shannon's lack of blood led to her ventricular fibrillation in the operating room. When a patient goes into ventricular fibrillation, her heart stops pumping blood and she is unable get oxygen to the brain. Shannon's EEG results indicated, "No focal or epileptic features are noted." Dr. Brewer testified that "the way that a reasonable person would interpret that is that something had happened to all of the brain. . . . A global injury." At St. Luke's there were seventeen neurologic consults, and each neurologist agreed that Shannon had anoxic encephalopathy, which is global damage to the brain caused by a lack of oxygen.

         Dr. Brewer offered the following conclusions: Dr. Gunn was negligent in failing to give more blood products from the beginning; Dr. Gunn was negligent in failing to order more frequent lab tests to determine whether the blood products needed to be adjusted; and Dr. Gunn was negligent in failing to include adjustments to the administration of blood products to deal with the hemoglobin, platelets, and lack of FFP. "You can [pour] the blood in, but the blood just keeps coming out if you can't clot it."

         B. Dr. Gunn and OGA's Theory

         Dr. Gunn and OGA produced three experts on the issue of liability: Dr. James Aubuchon, a medical doctor, board certified in anatomic and clinical pathology, blood banking, and transfusion medicine; Dr. James Alexander, a medical doctor, board certified in obstetrics and gynecology with a subspecialty of maternal/fetal medicine; and Dr. Martin Steiner, a neurologist.

         Contrary to Dr. Brewer's testimony, Dr. Aubuchon testified that with the blood products and fluids she had been given, Shannon had more than enough volume for her heart to function properly. He testified that her lab results (hemoglobin, creatinine, and PT), while outside of the normal ranges, were not "exceedingly high" or cause for panic. He also pointed to nurses' notes that recorded the presence of clots in the post-delivery vaginal bleeding, which "implies that the clotting system [was] able to work."

         The three experts collectively offered an alternative theory of liability. They testified that placental abruption is a result of a rupture of the mother's blood vessels in the uterus. This leads to the exposure of a substance known as thromboplastin. Thromboplastin is intended normally to start a clotting process in a small area, but in the case of placental abruption, it gets into the blood system and kicks off the clotting system inside the blood vessels themselves. This process is effectively DIC: an activation of the clotting system, such that small clots, or "thrombi, " are being formed throughout the entire body. These small clots move through the vascular system, and if they move into even smaller vessels, they may block those vessels, which is called "microthrombus." Such blockage would prevent blood flow to surrounding tissues, causing those tissues to die from lack of oxygen.

         Dr. Steiner testified that Shannon's computerized axial tomography (CAT) scans after the injury were not consistent with a global hypoxic injury, but instead showed results focused in only a small area of the brain. Thus, he opined that "it's these microthrombi or these small little [clots] that we have been talking about" that cause the type of problems Shannon experienced. "It's not the type of thing that you see when there is a global hypoxia or a global lack of oxygen to the brain." He concluded that instead of a global or hypoxic event, Shannon suffered ischemia, or lack of blood flow to tissue, to small areas of her brain from these micro clots, and her neurological damage was "due to the small little microthrombi blocking off the blood vessels and causing teeny strokes." In support of this theory, he noted Shannon's initial improvement, which is typical in a patient who has mini strokes, but not in a patient who has suffered global problems of hypoxia to the brain. Thus, Dr. Steiner testified that Shannon's seizure in 2005, which he opined was unrelated to her initial brain injury, was significant because Shannon never regained the improved function she initially experienced.

         C. Competency of Evidence

         In analyzing whether there was legally sufficient evidence of causation, we start with the general proposition that "a determination of scientific reliability is appropriate in reviewing the legal sufficiency of evidence." Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011).

Justice Gonzalez, in writing for the Court, gave rather colorful examples of unreliable scientific evidence in E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995), when he said that even an expert with a degree should not be able to testify that the world is flat, that the moon is made of green cheese, or that the Earth is the center of the solar system. If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no.

Havner, 953 S.W.2d at 712. Examination of an expert's underlying methodology is "a task for the trial court in its role as gatekeeper, and [is] not an analysis that should be undertaken for the first time on appeal." Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). However, we have long held that incompetent evidence is legally insufficient to support a judgment, even if admitted without objection. City of Keller, 168 S.W.3d at 812; see also Coastal Transp. Co., 136 S.W.3d at 233 (holding that a legal sufficiency challenge may be brought on appeal even when there was no admissibility objection to the reliability of the expert's opinion; in that case, the challenge is limited to the face of the record, "for example, when the expert testimony is speculative or conclusory on its face"); Hous. Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 829 (Tex. 2014) (noting that an expert opinion admitted without objection may be probative evidence even if its basis is unreliable, but such opinion offered with no basis or with a basis that provides no support "is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection"). Thus, evidence showing an expert's opinion to be incompetent cannot be disregarded, even if the result is contrary to the verdict. City of Keller, 168 S.W.3d at 812. And if an expert's opinion is based on certain assumptions about the facts, we must consider evidence showing those assumptions were unfounded. Id. at 813; see also Mel Acres Ranch, 443 S.W.3d at 829 (explaining that reliance on insufficient data and unsupported assumptions, as well as analytical gaps, can render an expert's opinion conclusory and without any evidentiary value). Thus, "if 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." Mel Acres Ranch, 443 S.W.3d at 829.

         1. The Hemoglobin Test

         Dr. Gunn challenges the underlying basis for Dr. Brewer's opinion-that one point on the hemoglobin test is equivalent to one unit of blood.[5] At trial, Dr. Aubuchon testified that a hemoglobin test measures the concentration of hemoglobin in the blood, but "[i]t doesn't by itself say anything about how much blood the patient has." He testified that hemoglobin levels are impacted by a patient's hydration status: "If you were given a lot of IV fluids, that would cause your hemoglobin level, your concentration of hemoglobins, to go down." Thus, when Shannon's hemoglobin levels dropped to 5.5, he believed it was as a result of at least four liters of IV fluids she received prior to that. Moreover, Dr. Gunn argues that Dr. Brewer's testimony is contradictory because Shannon's lab results at 1:16 p.m. indicated that her hemoglobin levels had in fact increased from 5.5 to 7.5.

         An expert's opinion may be considered unreliable if it is based on assumed facts that vary materially from the actual facts, or if it is based on tests or data that do not support the conclusions reached. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 637 (Tex. 2009); see Mel Acres Ranch, 443 S.W.3d at 833. In either instance, the opinion is not probative evidence. Camacho, 298 S.W.3d at 637. However, this does not mean that an expert's factual assumptions must be uncontested or established as a matter of law-if the evidence conflicts, it is normally the province of the jury to determine which evidence to credit. Mel Acres Ranch, 443 S.W.3d at 833. But if the record contains no evidence supporting an expert's material factual assumptions, or if such assumptions are contrary to conclusively proven facts, opinion testimony founded on those assumptions is not competent evidence. Id. Expert testimony may also be unreliable if "there is simply too great an analytical gap between the data [relied upon] and the opinion proffered." Id. at 835 (quoting Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998)). We are not required to ignore fatal gaps in an expert's analysis or assertions that are simply incorrect, and such a flaw in an expert's reasoning renders the scientific testimony "unreliable and, legally, no evidence." Id. (quoting Havner, 953 S.W.2d at 714).

         In her testimony, Dr. Brewer first offered a basis for using hemoglobin as an indicator of blood loss:

Q: Now you hear about these blood tests like a CBC, a complete blood count. Is a hemoglobin included in the CBC?
A: It is. Usually, a hemoglobin, hematocrits. It looks at white blood cells, it look[s] at red cells . . . and it looks at platelet count.
Q: If a physician wants to know if his or her patient is bleeding, can they order a CBC and look at hemoglobin?
A: They can. They can also just order a hemoglobin and a hematocrit. They can do either.

         She testified that using lab results, including hemoglobin, to measure blood loss is necessary because doctors "[a]bsolutely" cannot always look at a patient and know if she is bleeding. And Dr. Brewer explained the inconsistency in Shannon's increased hemoglobin level in the afternoon.

Q: So what really was going on when the hemoglobin went from 5.5 at 7:27 in the morning to 7.5 at 1:16 in the afternoon, explain that to us please.
A: That she was continuing to bleed.
Q: And how do you know that?
A: Because from the amount that was put in, that she was infused, it should have been higher than that.

         Finally, Dr. Brewer acknowledged that hemoglobin levels provide only an approximation of blood loss, repeatedly emphasizing on both direct and cross examinations that such levels must be viewed within the broader context of Shannon's condition.

Q: . . . But if [Shannon's hemoglobin] was 5.5, that fact alone with no other evidence, you would agree one would not expect a patient to have a cardiac arrest just by having a 5.5 hemoglobin. Correct?
A: I can't agree with what you're saying because you're taking things out of context.
Q: Let's do this as-let's don't use Shannon McCoy.
A: I don't think you can say it about any patient. It has to be in the context of what's happening medically.

         The court of appeals correctly noted that the jury was entitled to credit Dr. Brewer's testimony "that it is not 'appropriate' for someone managing a DIC case to consider just one lab result such as hemoglobin and ignore all the other markers, including the presence of quantifiable external bleeding." 489 S.W.3d at 93 (quoting Dr. Brewer's testimony). Thus, while the assumption underlying Dr. Brewer's opinion is not uncontested or established as a matter of law, it is also not unfounded or scientifically unreliable on the face of the record, and the jury was free to credit both the assumption and the opinion resting on it. City of Keller, 168 S.W.3d at 827 (holding that a reviewing court "must credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not").

         2. The Quantity of Blood Products Transfused

         Applying Dr. Brewer's hemoglobin assumption, the court of appeals conducted detailed calculations of Shannon's blood loss based on the evidence in the record, reaching the following conclusions:

Utilizing the initial blood volume figure of 20.1 units cited by Gunn and OGA, the jury reasonably could have concluded that Shannon's blood volume loss reached approximately 36% by 1:00 p.m. in reliance on these figures:
• 20.1 units of blood present in Shannon's body at 11:00 a.m. on September 13 minus 13.2 units of blood lost plus 6 units of blood replaced equals 12.9 units of blood present at 1:00 p.m. on September 14.
• 20.1 units of blood present in Shannon's body at 11:00 a.m. on Septmeber 13 minus 12.9 units of blood present at 1:00 p.m. on September 14 equals a net blood loss of 7.2 units during that interval.
• A net blood loss of 7.2 units as of 1:00 p.m. on September 14 divided by 20.1 units of blood present at 11:00 a.m. on September 13 equals 36% of blood ...

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