Court of Appeals of Texas, Second District, Fort Worth
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
Appeal from the 17th District Court Tarrant County, Texas
Trial Court No. 017-263281-12
Gabriel, Pittman, and Bassel, JJ.
T. PITTMAN, JUSTICE
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). 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.
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).
sued Dr. Gordon for failing to prevent the PE. 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.
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.
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
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.
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).
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).
The Jury's Verdict Is Supported by Sufficient
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
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; or (3)ambulating. However, as we discuss