Rita Silva, Individually and on Behalf of the Estate of Ignacio Martinez, Deceased v. Rajeev Saree, M.D.--Appeal from 166th Judicial District Court of Bexar County

No. 04-99-00427-CV
Rita SILVA, Individually and on Behalf of the Estate of Ignacio Martinez,
Appellant
v.
Rajeev SAREEN, M.D.,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CI-18001
Honorable Carlos C. Cadena, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 29, 2000

AFFIRMED

Rita Silva appeals the summary judgment entered against her on her claim against Dr. Rejeev Sareen for medical malpractice. Silva argues the trial court erred in granting Dr. Sareen's motion for summary judgment because she presented a material issue of fact with respect to the challenged element of her claim. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

On May 17, 1997, Ignacio Martinez, who had a history of umbilical hernia, went to the emergency room complaining of abdominal pain. Dr. Sareen attended to Martinez in the emergency room and diagnosed him with, among other things, a hernia. Dr. Sareen suggested that surgery may be needed to remedy the hernia but that Martinez and his doctor would need to decide on the right treatment. Finally, Dr. Sareen instructed Martinez to schedule an appointment with Dr. Arturo Marroquin, a surgeon, for the next day. Martinez did not make the follow up visit as instructed, but did see Dr. Marroquin on May 20. After examining Martinez, Dr. Marroquin discovered an incarcerated umbilical hernia and instructed Martinez to go to the hospital for admission to surgery. On May 21, Dr. Marroquin performed surgery on Martinez to repair his umbilical hernia. However, complications arose during surgery and Martinez was transferred to the intensive care unit. Martinez' condition only worsened, however, and he died early in the morning on May 22 after suffering a cardiac arrest.

Silva filed suit against Drs. Sareen, Marroquin, and Kenneth Carl Weeden, Martinez' anesthesiologist during his hernia surgery, claiming each had been negligent. Silva eventually settled her claims against Drs. Marroquin and Weeden, but continued to assert her claim against Dr. Sareen. Specifically, Silva contended that Dr. Sareen was negligent in (1) failing to properly diagnose Martinez, (2) failing to immediately admit Martinez into the hospital for further testing and evaluation, (3) failing to properly treat Martinez' hernia, and (4) failing to immediately consult with a surgeon and arrange for a surgeon to examine Martinez. Dr. Sareen filed a motion for summary judgment under Rule 166a(i), Tex. R. Civ. P., arguing there is no evidence of causation. Silva responded with the affidavits of several doctors along with Martinez' medical records. The trial court granted Dr. Sareen's motion and Silva now appeals.

Standard of Review

We review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.--San Antonio 1997, writ denied). We will uphold a traditional summary judgment only if the movant shows there is no genuine issue of material fact and it is entitled to judgment as a matter of law on a ground set forth in its motion. Id. On the other hand, we will uphold a no-evidence motion for summary judgment only if the summary judgment record shows no evidence of the challenged element, i.e., "(a) a complete absence of evidence [as to the challenged element]; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove [the challenged element]; (c) the evidence offered to prove [the challenged element] is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of [the challenged element]." Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960); Blan v. Ali, 7 S.W.3d 741, 747 (Tex. App.--Houston [14th Dist.] 1999, no pet. h.). In deciding whether the summary judgment evidence raises a genuine issue of material fact, we view as true all evidence favorable to the respondents and indulge every reasonable inference and resolve all doubts in their favor. Valores, 945 S.W.2d at 162.

Discussion

In responding to Dr. Sareen's no evidence motion for summary judgment, Silva was required to bring forth some evidence that Dr. Sareen's alleged breach of the standard of care was a cause in fact and a foreseeable cause of Martinez' injury. See Tex. R. Civ. P. 166a(i); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). Silva argues her summary judgment evidence, including Martinez' medical records and the affidavits of three doctors, "clearly established more than a scintilla of evidence on the issue of causation."

The medical records show Dr. Sareen attended to Martinez in the emergency room on May 17 and, although he diagnosed Martinez with a hernia, he did not admit Martinez to the hospital or arrange for immediate examination of Martinez by a surgeon. Rather, Dr. Sareen instructed Martinez to consult with a surgeon the next day. The medical records further show that when Martinez finally did consult with a surgeon, he was diagnosed with an incarcerated umbilical hernia and was scheduled for surgery. Dr. Marroquin's notes indicate Martinez developed pulminary edema during the hernia surgery and he was thus taken to the intensive care unit. A pulmonologist called in for consultation also indicated Martinez developed extensive pulmonary edema during surgery, and a cardiologist indicated he believed the pulmonary edema was secondary to sepsis.

Based on these records, Dr. Robert Bux, one of Silva's experts, stated Martinez died as a result of an overwhelming sepsis due to an incarcerated umbilical hernia. Furthermore, Dr. Charles Brunicardi stated in an affidavit that Dr. Sareen breached the standard of care by failing to obtain immediate surgical examination of Martinez, and "[i]t is a reasonable medical probability that this failure certainly contributed to the seriousness of Mr. Martinez' condition and the delay in diagnosis and treatment was a proximate cause of Ignacio Martinez' ultimate demise." Likewise, Dr. Lynn Gibbs stated in his affidavit that Dr. Sareen should have obtained a surgical examination of Martinez on an emergent basis, and it was his opinion that "in reasonable medical probability, the failure of Dr. Rajeev Sareen to diagnose and adequately treat this life-threatening and serious condition was below the standard of care for an emergency room physician and a proximate cause of Ignacio Martinez' death."

While Silva argues on appeal this was some evidence Dr. Sareen's negligence proximately caused Martinez' injuries, Dr. Sareen argues the doctors' affidavits are merely conclusory and insufficient to raise an issue of fact. Indeed, "an expert's bare opinion" can not be considered some evidence of causation. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied 523 U.S. 119 (1998); Schaefer v. Texas Employers ' Ins. Ass'n, 612 S.W.2d 199, 202-04 (Tex. 1980). We must look past an expert's use of magic words, like "based on reasonable medical probability," to the substance of the expert's testimony in determining whether it qualifies as some evidence of causation. Merrell Dow, 953 S.W.2d at 711-12; Schaefer, 612 S.W.2d 202-05.

A similar issue was recently decided by the Fourteenth Court of Appeals in Blan v. Ali, 7 S.W.3d 741 (Tex. App.--Houston [14th Dist.] 1999, no pet. h.). There, Blan, who had a history of systematic lupus erthematosus and a past stroke, was taken to the emergency room after being found slumped over in the shower. Id. at 743. Blan's cardiologist did not come to the emergency room but stayed in contact with the emergency room doctor by telephone. After a series of tests, Blan suffered another stroke. Id. The plaintiffs alleged that Blan's cardiologist

was negligent in (1) failing to properly investigate and monitor Blan's medical history and condition on initial evaluation; (2) failing to come to the hospital to personally examine Blan; (3) delaying the initiation of appropriate treatment, including steroids and/or anticoagulation therapy; (4) failing to obtain prompt examination of Blan by a neurologist; and (5) delaying Blan's admission to the hospital's Intensive Care Unit.

Id. The plaintiffs also alleged the emergency room doctor "was negligent in (1) delaying treatment, including medications; (2) negligently monitoring Blan's condition; and (3) delaying Blan's admission to the hospital." Id. Both doctors filed motions for summary judgment--one under the traditional summary judgment rule and the other under Rule 166a(i). Id. at 747. The issue under both motions was whether there was any issue of material fact on the elements of breach of the standard of care and proximate causation. Id. at 748. The plaintiffs responded with the affidavit of an expert doctor, who, after covering the applicable standard of care, went on to state:

By their negligent acts and omissions, Drs. Ali and Bartasis allowed Mr. Blan's condition to deteriorate. Prompt recognition and treatment of Mr. Blan's condition would have led to appropriate treatment of his condition, and more likely than not have led to an improved outcome for Mr. Blan.

.

It is further my opinion that Drs. Ali and Bartasis' negligence was a proximate cause of Mr. Blan's injuries.

Id. The Fourteenth Court of Appeals held the affidavit was sufficient to raise a genuine issue of fact regarding the breach of the standard of care. Id. at 747. However, because the affidavit did not "identify what aspect of Blan's condition deteriorated as a result of the alleged negligent acts," "explain how or why the alleged negligent acts caused Blan's condition to deteriorate in that manner," "identify what better outcome could have been produced by different actions," or "explain how or why a different treatment could have produced an improved outcome," the court held the affidavit was conclusory and insufficient to raise a fact issue on the element of causation. Id. at 748.

Similarly, while both Drs. Brunicardi and Gibbs testified that Dr. Sareen's delay in obtaining a surgical examination of Martinez contributed to the outcome and proximately caused his death, they do not attempt to explain, nor is there any evidence showing, how or why the delay caused Martinez' death. Furthermore, there is no evidence of how a different course of treatment could have produced a different outcome. Therefore, we hold Drs. Brunicardi and Gibbs' affidavits were conclusory and insufficient to create a genuine issue of material fact on causation. See id.; Merrell Dow, 953 S.W.2d at 711-12. Furthermore, there is no other evidence that tends to show Dr. Sareen's negligence, if any, in failing to obtain immediate examination of Martinez by a surgeon proximately caused his death.

Because Silva failed to bring some evidence Dr. Sareen proximately caused Martinez' death, we affirm the trial court's summary judgment.

Sarah B. Duncan, Justice

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