Joe Rivas Suniga v. Elizabeth Eyre, M.D., f/k/a Elizabeth A. Colonna, M.D.--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00902-CV
Joe Rivas SUNIGA,
Appellant
v.
Elizabeth A. EYRE, M.D.,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 00-CI-00691
Honorable Phylis J. Speedlin, Judge Presiding (1)

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: January 21, 2004

AFFIRMED

Joe Rivas Suniga ("Suniga") filed this wrongful death medical malpractice suit against Elizabeth Eyre, M.D., claiming Dr. Eyre was negligent in the diagnosis and treatment of his daughter, Teresa Suniga ("Teresa"). Suniga brings this appeal from the trial court's granting of

Dr. Eyre's motion for summary judgment. We affirm the trial court's judgment.

Factual and Procedural Background

Teresa, an eighteen year old paraplegic, was admitted to the hospital in March 1998 for excision and debridement surgery. Dr. Eyre was the anesthesiologist. During the surgery, Teresa's chest filled with intravenous fluid and her heart stopped beating. Teresa subsequently died. Suniga filed suit, claiming Dr. Eyre was negligent in: (1) failing to properly place a catheter and negligently causing an infusion of fluid into Teresa's chest cavity; (2) failing to recognize the incorrectly placed catheter; (3) failing to evaluate Teresa's condition to provide proper treatment; (4) failing to adequately manage, monitor, and provide proper medical care to Teresa; (5) failing to measure the central venous pressure to detect possible problems; and (6) failing to obtain an x-ray prior to inserting another intravenous line without ruling out possibilities of puncture.

Dr. Eyre moved for a traditional summary judgment as well as a no-evidence summary judgment. She argued that summary judgment should be granted on two issues: (1) breach of the standard of care and (2) proximate causation. Dr. Eyre attached as summary judgment evidence: (1) Dr. Eyre's affidavit; (2) Dr. Eyre's deposition; (3) Dr. Donald Sanderson Prough's deposition; (4) Dr. James Hudell Wright's deposition; and (5) excerpts of the deposition of Suniga's medical expert, Dr. Richard Toussaint. Suniga filed a response to Dr. Eyre's motion for summary judgment, attaching as evidence Dr. Toussaint's affidavit and excerpts from Dr. Toussaint's deposition.

At the hearing on the motion for summary judgment, Dr. Eyre raised numerous objections to Suniga's summary judgment proof. The trial court sustained the objections and granted summary judgment. Suniga appeals.

Standard of Review

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of the plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.--San Antonio 2000, no pet.); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.--San Antonio 1999, no pet.).

A defendant health care provider in a medical malpractice case is entitled to summary judgment if the summary judgment proof negates one or more of the following elements of the plaintiff's cause of action: (1) the duty to act according to a certain standard of care; (2) a breach of that standard of care; (3) an injury; or (4) a causal connection between the breach and the injury. Spinks v. Brown, 103 S.W.3d 452, 456 (Tex. App.--San Antonio 2002, pet. denied); Silvas v. Ghiatas, 954 S.W.2d 50, 52 (Tex. App.--San Antonio 1997, pet. denied). Establishing the right to summary judgment in a medical malpractice action, as well as negating that right, generally depends on expert medical testimony. Spinks, 103 S.W.3d at 456; Lopez v. Carrillo, 940 S.W.2d 232, 234 (Tex. App.--San Antonio 1997, pet. denied). Expert testimony is required on the issues of medical negligence and causation. Lopez, 940 S.W.2d at 234. If a defendant negates an element of a plaintiff's cause of action by competent summary judgment evidence, such as expert testimony, the plaintiff must present controverting expert testimony in order to raise a fact issue. Spinks, 103 S.W.3d at 456; Lopez, 940 S.W.2d at 234.

Summary judgment

In one issue on appeal, Suniga contends the trial court erred in granting summary judgment. Suniga does not complain of the trial court's striking his summary judgment evidence, but rather argues that the summary judgment evidence produced by Dr. Eyre establishes a fact issue precluding summary judgment.

Dr. Eyre argues that she carried her burden of proof in negating two elements of Suniga's claim: breach of the standard of care and proximate cause. Dr. Eyre points to the summary judgment evidence as follows:

In her testimony, Dr. Eyre testified to her education and experience in the field of anesthesiology. She stated that she was familiar with the standard of care for treating patients like Teresa and outlined specifically what that standard of care requires. Referring to the allegations against her, Dr. Eyre testified that it was not the standard of care to obtain prior medical records before proceeding with surgery or to utilize central venous pressure monitoring during surgery. She further stated that her failure to obtain medical records or to utilize central venous pressure monitoring during the surgery was not the proximate cause of Teresa's death. Dr. Eyre also testified it was not the standard of care to obtain a chest x-ray during the surgery to check the placement of the catheter.

Dr. Prough, a board certified anesthesiologist, testified in support of Dr. Eyre. According to Dr. Prough, Dr. Eyre's failure to obtain medical records before surgery did not breach the standard of care. He also testified that Dr. Eyre's placement of the venous catheter and her actions in verifying its position met the standard of care. And, Dr. Prough stated that Dr. Eyre did not breach the standard of care by failing to order a chest x-ray or using venous pressure monitoring during surgery.

Dr. Wright, also a board certified anesthesiologist, testified that Dr. Eyre did not breach the standard of care. According to Dr. Wright, it was not a breach of the standard of care to not obtain past medical records and he agreed with Dr. Eyre and Dr. Prough that central venous pressure monitoring and obtaining a chest x-ray during surgery were not required by the standard of care. Arguing that the evidence raises a fact issue, Suniga points to the testimony of Dr. Wright wherein Dr. Wright testified that the use of a central venous pressure monitor could have provided an answer to the tachycardia and hypertension Teresa was experiencing and could have been used at any stage of the procedure. Further, Dr. Wright testified that a chest x-ray is warranted when the patient experiences immediate and dramatic changes in blood pressure and heart rate. Suniga also points to the testimony of Dr. Toussaint who testified that the doctor has to monitor the patient when administering fluids and that one way to ascertain continuous placement of a catheter is through a central venous monitor. And, according to Suniga, Dr. Prough's testimony contradicts Dr. Eyre's testimony. Suniga argues that Dr. Prough's opinion regarding Dr. Eyre not breaching the standard of care was based on an erroneous assumption that Teresa's body position was not shifted during surgery when, in fact, Dr. Eyre testified that Teresa changed positions from her side to almost on her face due to the hammering and chiseling required in the surgery.

We disagree with Suniga that Dr. Eyre's summary judgment evidence raises a fact issue with regard to whether she breached the standard of care. All three defense experts set forth their qualifications as anesthesiologists, the applicable standard of care, and stated that Dr. Eyre acted within the standard of care in all matters in which she was alleged to be negligent. The testimony that Suniga points to shows that central venous monitoring and a chest x-ray could have been done, but there is no evidence that the standard of care requires those procedures to be done. There also is no evidence indicating that Dr. Eyre breached the standard of care in failing to obtain medical records. And, a review of Dr. Prough's testimony shows no misunderstanding on his part as to whether Teresa was shifted during surgery. In reaching his opinion that Dr. Eyre did not breach the standard of care, he was aware that she had been turned on her right side during surgery and that the surgery involved sawing and hammering. He still reached the conclusion that Dr. Eyre did not breach the standard of care in her treatment of Teresa.

With regard to the proximate cause issue, Dr. Eyre, Dr. Prough, and Dr. Wright all testified that nothing Dr. Eyre did with regard to Teresa's treatment caused her death. In an attempt to create a fact issue, Suniga points to Dr. Wright's testimony wherein he states that the proximate cause of Teresa's death was two liters of fluid being put into her chest. And, Suniga points to Dr. Eyre's testimony that Teresa's death was caused by the large amount of fluid that was infused into her chest. Further, Suniga again emphasizes Dr. Toussaint's testimony that a central venous pressure monitor could have been used to ascertain the catheter's continued placement. And, he points to Dr. Eyre's statement that, at some point during the surgery, she began to get very unbelievable blood pressure readings and that Dr. Eyre continued to run the intravenous lines throughout the surgery. Further, as pointed out by Suniga, Dr. Toussaint testified that the whole problem may have been avoided if Dr. Eyre had pulled the catheter back.

None of the evidence Suniga refers to raises a fact issue with regard to proximate cause. It is undisputed that Teresa's chest cavity filled with intravenous fluid which led to her eventual death. This does not, however, raise a fact issue with regard to whether any action or inaction on Dr. Eyre's part was the proximate cause of Teresa's death. And, there is no evidence that Dr. Eyre's failure to pull the catheter back proximately caused Teresa's death; Dr. Toussaint only testified that pulling it back may have aborted the problem. In medical malpractice cases, the causal connection between the negligence and the injury must be based on expert testimony establishing "reasonable medical probability," not mere conjecture, speculation, or possibility. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lette v. Baptist Health Sys., 82 S.W.3d 600, 601 (Tex. App.--San Antonio 2002, no pet.).

For the above reasons, we hold that the trial court did not err in granting summary judgment and overrule Suniga's sole issue.

Conclusion

Having overruled Suniga's issue, we affirm the trial court's judgment.

Karen Angelini, Justice

1. The Honorable Lori Cliffe Massey is the presiding judge of the 288th Judicial District Court, Bexar County, Texas. The Honorable Phylis J. Speedlin signed the order granting summary judgment.