CONCEPCION H. REYNA AND BENITO REYNA v. CARLOS E. MALDONADO, JR., D. O.--Appeal from 357th District Court of Cameron County

 NUMBER 13-04-410-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CONCEPCION H. REYNA AND

BENITO REYNA, Appellants,

v.

CARLOS E. MALDONADO, JR., D.O., Appellee.

On appeal from the 357th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Garza

Appellants, Concepcion and Benito Reyna, sued appellee, Carlos Maldonado, D.O., alleging, among other things, a cause of action for medical negligence based on appellee=s failure to detect and diagnose a cancerous tumor in Concepcion=s left breast in December 1999. The trial court ruled that Neil Longley, M.D., an expert witness for appellants, could not testify about whether Concepcion actually had a tumor in December 1999 because he lacked the requisite expertise. See Tex. R. Evid. 702. At the close of appellants= case-in-chief, the trial court granted a directed verdict in appellee=s favor. Appellants now argue that the trial court erred by excluding Dr. Longley=s testimony. In a cross-appeal, appellee argues that the trial court erred by denying his motion for dismissal and sanctions under section 13.01 of former article 4590i of the Texas Revised Civil Statutes.[1]

We conclude that appellants have failed to establish that the trial court=s error, if any, in excluding Longley=s testimony, probably led to the rendition of an improper judgment. Accordingly, we overrule appellants=s sole issue on appeal. See Tex. R. App. P. 44.1(a). We also conclude that appellee=s failure to file a notice of appeal precludes the award of any relief based on his cross-appeal. See Tex. R. App. P. 25.1(c). We therefore affirm the judgment of the trial court.

Background

Appellants= live pleading alleged that appellee was negligent in performing mammograms on Concepcion in December 1999 and in interpreting the results of the mammograms. The petition further alleged that, as a result of appellee=s negligence, a tumor in Concepcion=s left breast went undetected and undiagnosed for almost six months. According to the petition, appellee detected the tumor after a second mammogram examination in June 2000, but by that time, the tumor had grown into Aa well-developed 3 cm mass.@ The petition further alleged that appellee diagnosed the tumor as a Anew@ mass, which, because of its fast growth, had a definite probability of being malignant. The petition then made the following allegations, which are central to this Court=s disposition of appellants= sole issue on appeal:

[H]ad the mammograms of December 21, 1999 been correctly performed, read, interpreted and/or that a recommendation of further monitoring had been made, the tumor would not have been so dangerously large when diagnosed and [Concepcion] could have opted for a more conservative treatment. However, the second mammogram was read and interpreted by Maldonado as a Anew@ and Arapidly growing@ mass. This representation was negligently and / or knowingly made. Had the tumor been correctly diagnosed and treated or more closely monitored medically after the first mammogram, and had interpretation of the second mammogram been accurate and truthful, she would have had other choices of treatment.

Plaintiff would show that even at the 3cm size of the tumor in June of 2000, she was still given the option of a lumpectomy, i.e. that she could have saved her breast. However, because of the advanced size and nature of the tumor, and the interpretation by Maldonado that it was Anew@ and Arapidly growing@ she felt compelled not only to undergo a radical mastectomy, but to undergo prophylactic removal of her other breast.

The frightening impact of Maldonado=s readings deprived her of reasonable options and caused Plaintiff to choose the most radical treatment possibleCa bilateral radical mastectomy and reconstruction. Had the mass been diagnosed as potentially cancerous earlier, or described accurately and truthfully, Concepcion Reyna could have confidently had a much less invasive procedure.

Concepcion Reyna=s radical bilateral mastectomy and reconstruction has resulted in serious and disabling aggravation of previously tolerable fibromyalgia, disfigurement, constant pain, total inability to work, complete inability to function as a homemaker and as a wife, and caused her to otherwise lose her health and the usual enjoyment of life. The delays in diagnosis and treatment have increased her chances for recurrence of cancer.

Plaintiff Benito Reyna would show that he is also profoundly and personally damaged because his wife of over thirty years has been unable to engage in conjugal relations as wife and companion to him, and that she can no longer perform the usual tasks of maintaining their household.

From the foregoing excerpts from the petition, it is evident that appellants= damages were alleged to have been caused by Concepcion=s radical choice of treatment, which was, in turn, allegedly caused by the large size of the tumor and appellee=s diagnosis of the tumor as new and rapidly growing. The late detection and improper diagnosis, in turn, were allegedly caused by appellee=s failure to properly perform and interpret the mammograms performed in December 1999.

At the close of appellants= case-in-chief, appellee attacked the evidence supporting appellants= allegations, contending that appellants had failed to present any evidence as to appellee=s standard of care or proximate cause. The trial court agreed:

 The Court: I=ve listened to all the evidence that=s been presented to the jury and to me. Apparently, you and I do not see eye-to-eye as to what causation B whether there=s causation or not.

 Counsel for Appellants: Okay.

 The Court: I think it=s too remote. I think that you have speculation. You have people speculating that there might have been something there. And if it was, that she would not have gotten both breasts removed. Her husband didn=t even know that.

I=m going to grant the instructed verdict, the request for instructed verdict.

Bring in the jury. You can appeal whatever you want.

I said instructed. I meant directed verdict.

A take nothing judgment was then entered against appellants, and this appeal ensued.

I. Exclusion of Evidence

The sole issue presented by appellants is whether the trial court committed reversible error by excluding expert testimony by Dr. Longley that the tumor was actually present in December 1999. As the courts of this state have explained repeatedly, the trial court has broad discretion to determine the admissibility of evidence. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002); Aguillera v. John G. & Marie Stella Kenedy Mem=l Found., 162 S.W.3d 689, 693 (Tex. App.CCorpus Christi 2005, pet. denied). An appellate court must uphold the trial court=s evidentiary ruling if there is any legitimate basis for the ruling. Aguillera, 162 S.W.3d at 693; N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 914 (Tex. App.CCorpus Christi 1999, pet. denied). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court=s ruling was in error and that the error probably caused the rendition of an improper judgment. Aguillera, 162 S.W.3d at 693; Easter, 988 S.W.2d at 914 (citing Tex. R. App. P. 44.1(a)). If, as in this case, the issue concerns exclusion of evidence, the appellate court must review the entire record to determine whether error occurred. Aguillera, 162 S.W.3d at 693; Easter, 988 S.W.2d at 914.

We are unpersuaded that the trial court=s error, if any, in prohibiting Dr. Longley from testifying that the tumor was present in December 1999 had any effect on the take-nothing judgment rendered against appellants. At the close of appellants= case-in-chief, counsel for appellee moved for a directed verdict, arguing that appellants had failed to produce, inter alia, evidence of causation.[2] That is, appellee contended that there was no evidence connecting appellee=s alleged negligence to the damages suffered by appellants, which, according to their petition, stemmed from the radical treatment undergone by Concepcion. The trial court agreed.

We cannot find reversible error in the trial court=s evidentiary ruling without also holding that the trial court=s directed verdict was improper. That is, if the directed verdict was proper despite the evidentiary error, we would have no basis for holding that the evidentiary error probably led to the rendition of an improper judgment and was thus reversible error. See Tex. R. App. P. 44.1(a); McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992). For the reasons that follow, we conclude that the trial court=s directed verdict would have been proper even if the excluded testimony had been admitted. We therefore have no basis for concluding that the error, if any, in excluding the testimony probably led to the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Thus, even if the trial court erred, the error was not reversible error.

As demonstrated above, the trial court based its directed verdict on two considerations: (1) there was insufficient evidence to prove that the tumor was actually present in December 1999; and (2) there was insufficient evidence of causationCthat is, insufficient evidence that Concepcion underwent the radical bilateral mastectomy and breast reconstruction because of appellee=s negligence. Appellants have failed to adequately address this latter point on appeal. They seem to acknowledge that no expert testimony was produced to establish the requisite causal nexus, but they apparently contend that no expert testimony was required. This contention is incorrect. It has long been the law in Texas that causation in medical-negligence cases must be proved by expert testimony. See Lopez v. Carrillo, 940 S.W.2d 232, 234 (Tex. App.CSan Antonio 1997, writ denied) (citing Hart v. Van Zandt, 399 S.W.2d 791, 792 (Tex. 1965)).

There being no expert testimony in the record to prove by a reasonable medical probability that appellee=s negligence, if any, caused Concepcion to undergo the radical bilateral mastectomy and breast reconstruction, we cannot conclude that the trial court erred by granting a directed verdict based on the lack of evidence to prove causation. The only portion of Dr. Longley=s testimony that was excluded (i.e., that the tumor was present in December 1999) would not have established the requisite causal nexus between appellee=s negligence and Concepcion=s radical bilateral mastectomy and breast reconstruction. Nor did Dr. Longley purport to be qualified to offer an opinion as to how appellee=s alleged negligence affected Concepcion=s treatment options.[3] Thus, we cannot conclude that the exclusion of Dr. Longley=s testimony, even if erroneous, probably led to the rendition of an improper judgment. Accordingly, appellants= sole issue is overruled.

 II. Appellee=s Cross-Appeal

In his cross-appeal, appellee contends that the trial court erred in denying his motion for dismissal and sanctions. There is no indication in the record that appellee ever filed a notice of appeal. Under rule 25.1(c), AThe appellate court may not grant a party who did not file a notice of appeal more favorable relief than did the trial court except for just cause.@ Tex. R. App. P. 25.1(c). The trial court denied appellee=s motion for dismissal and sanctions. We are therefore precluded from awarding such relief Aexcept for just cause.@ Id. Appellee has not shown just cause. Accordingly, we overrule appellee=s cross-issue.

III. Conclusion

The judgment of the trial court is affirmed.

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 20th day of October, 2005.

1 Act of May 30, 1977, 65th Leg., R.S., ch. 817, ' 1.03(a)(4), 1977 Tex. Gen. Laws 2039, 2041 (former Tex. Rev. Civ. Stat. art. 4590i, ' 1.03(a)(4)), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.

2 The elements of a medical negligence claim are (1) a duty to conform to a certain standard of care, (2) a failure to conform to the required standard, (3) actual injury, and (4) a reasonably close causal connection between the conduct and the injury. Mathis v. Bocell, 982 S.W.2d 52, 56 (Tex. AppCHouston [1st Dist.] 1998, no pet.).

3 During voir dire examination, the following exchange took place between counsel for appellee and Dr. Longley regarding Dr. Longley=s deposition testimony, which established that Dr. Longley would not testify as to whether appellee=s negligence affected Concepcion=s treatment options because he was not qualified to give such testimony:

 Counsel: Okay, but I said,

Question: ABut as far as whether this actually caused her any problems, whether the treatment would have been different if it had been discovered earlier, whether there were any complications as a result of the delay, that=s something that=s actually really outside your area of expertise, correct?@

Answer: AYes, sir.@

 Counsel: And that is correct?

 Witness: Yes, sir.

 Counsel: Okay. And so as to whether or not, if this was a delay, whether it caused her any problem as to causation, you can=t really testify as to that, right?

 Witness: It may have caused a difference in B the delay may have caused a difference in her choices.

 Counsel: Well, but isn=t that something that=s outside B you would leave that, in fact, I think we already went over that B

 Witness: Yes, sir, still left up to the oncologist and the discussion of the patient with her surgeon.

 Counsel: Right, because that=s outside your area of expertise?

 Witness: Yes, sir.