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Pena v. Gordon

Court of Appeals of Texas, Second District, Fort Worth

April 4, 2019

Rodolfo De La Peña, Individually, on Behalf of all Wrongful Death Beneficiaries and as Personal Representative of the Estate of Beatriz De La Peña, Appellant
Kevin R. Gordon, M.D., Appellee

          On Appeal from the 17th District Court Tarrant County, Texas Trial Court No. 017-263281-12

          Before Gabriel, Pittman, and Bassel, JJ.



         A jury found in favor of Appellee Kevin R. Gordon, M.D., on the health care liability claim brought against him by Appellant Rodolfo De La Peña (Rodolfo), individually, on behalf of all wrongful death beneficiaries, and as personal representative of the estate of his wife Beatriz De La Peña (Beatriz).[1] In three issues, Rodolfo contends that the evidence was legally and factually insufficient to support the jury's finding of no negligence, that the trial court erred in denying his motion for judgment notwithstanding the verdict, and that the trial court erred in denying his motion for new trial. We affirm.


         On December 20, 2010, Beatriz went to Trinity Park Surgery Center for a laparoscopic hysterectomy and hernia repair. Dr. Gordon performed the hysterectomy. Dr. Jason Harrison performed the hernia repair. During the surgery, upon discovering the severity of Beatriz's endometriosis, Dr. Gordon decided to remove her ovaries and to convert from laparoscopic to open surgery. The surgery lasted two hours. Dr. Gordon then transferred Beatriz to Medical Center Arlington (MCA) for monitoring. Dr. Gordon was the admitting and attending physician. On the evening of December 21, while still at MCA, Beatriz died from a pulmonary embolism (PE).

         Rodolfo sued Dr. Gordon for failing to prevent the PE.[2] He alleged that Dr. Gordon had negligently failed to properly perform the medical treatment necessary to Beatriz's welfare and to provide proper assessment and treatment for the prevention of deep vein thrombosis (DVT) and PE. Rodolfo pled for damages for himself and the couple's children under Texas's Wrongful Death Act. See Tex. Civ. Prac. & Rem. Code Ann. § 71.002.

         At trial, Rodolfo called Dr. Paul E. Marik, an internist and critical care specialist, to testify as an expert. Dr. Marik testified that a DVT can cause a PE and that patients at risk for a DVT must be given appropriate DVT prophylaxis. Dr. Marik explained that under the applicable guidelines, Beatriz had a high DVT risk and that patients with a high DVT risk must be given certain blood thinners, wear a sequential compression device (SCD), or be ambulating, or have some combination of the three options. Dr. Gordon agreed with this part of Dr. Marik's testimony.

         Dr. Marik further testified that Dr. Gordon breached the applicable standard of care by failing to provide Beatriz with appropriate DVT prophylaxis. Either Rodolfo or one of his and Beatriz's daughters were in her hospital room at all times, and they testified that while Beatriz was at MCA, she walked no more than a few steps from her bed to a chair and back and did not have on an SCD. Dr. Gordon testified that he did not order that Beatriz be administered blood thinners because of a risk of postoperative bleeding, but he presented evidence contradicting Dr. Marik's testimony about whether he ordered an SCD and whether Beatriz was ambulating.

         The jury found that there was no negligence by Dr. Gordon that proximately caused Beatriz's death. Rodolfo filed a motion for new trial and a motion for JNOV. The trial court denied the motion for JNOV and rendered judgment that Rodolfo take nothing. The motion for new trial was denied by operation of law.


         We may sustain a legal-sufficiency challenge-that is, a no-evidence challenge-only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the rules of law or of evidence bar the court 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. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh'g); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh'g). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and must disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). If a party is attacking the legal sufficiency of an adverse finding on an issue on which the party had the burden of proof, and if no evidence supports the finding, we review all the evidence to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

         When reviewing a party's assertion that the evidence is factually insufficient to support a finding on which the party had the burden of proof, we set aside the finding only if, after considering and weighing all the pertinent record evidence, we determine that the failure to find is against the great weight and preponderance of the credible evidence. Dow Chem., 46 S.W.3d at 242; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988); see Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681- 82 (Tex. 2006).


         I. The Jury's Verdict Is Supported by Sufficient Evidence.

         In his first issue, Rodolfo contends that the jury's verdict is not supported by legally and factually sufficient evidence. However, in his brief he discusses only the evidence contrary to the finding and fails to discuss the evidence supporting the finding. See In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (stating that factual sufficiency review requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding). After reviewing the record, we hold that sufficient evidence supports the jury's verdict.

         The evidence established that upon Beatriz's admission to MCA, she was at high risk for a DVT. Dr. Marik testified that DVT prevention guidelines published by various health organizations set the standard of care for DVT prevention and specify the options for high-risk patients. Dr. Gordon equivocated about what the applicable standard of care requires for DVT prevention, but he agreed with Dr. Marik's testimony about what the guidelines on which Dr. Marik relied called for regarding DVT prophylaxis options, and defense witness Dr. Russell Dickey stated that "[t]he standard of care is that you follow a guideline to prevent DVT." Both sides presented evidence that under applicable guidelines, there are three recognized options for DVT prevention: (1) chemical or pharmacological prophylaxis, primarily in the form of either low-dose unfractionated heparin or low-molecular-weight heparin (Lovenox); (2) mechanical prophylaxis by way of SCDs, which squeeze the legs[3]; or (3)ambulating. However, as we discuss ...

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