Johnny Reyes v. JEBO'C, Inc. d/b/a Neuromuscular Associates of San Antonio--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00680-CV

Johnny REYES,

Appellant

v.

JEBO S, INC. d/b/a Neuromuscular Associates of San Antonio,

Appellee

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-CI-14228

Honorable John Specia, Jr., Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 4, 2005

AFFIRMED

Johnny Reyes sued Jebo s, Inc. d/b/a Neuromuscular Associates of San Antonio for injuries allegedly caused by the improper application of moist heat packs during physical therapy. The trial court granted summary judgment in favor of Jebo s on both traditional and no evidence grounds, and Reyes appeals. We affirm the trial court s judgment.

Background

Reyes alleged in his petition that therapists employed by Jebo s placed moist hot packs on his calves for some period of time. Reyes alleged that the hot packs burned his calves, the burns worsened, and that he had to undergo operations, skin grafts and other medical procedures as a result.

As summary judgment evidence, Jebo s presented the affidavit of Eric Stuart Schaffer, M.D., a board certified plastic surgeon. Schaffer stated that Reyes developed a full thickness skin loss of both inner calves. Schaffer noted that Reyes alleged that his injuries were caused by the application of moist heat packs to his inner calves during physical therapy. Reyes contended that the moist heat packs were first applied to his upper thighs for ten minutes and then were moved to his calves without being re-heated. Reyes further contended that the heat pads were left on his calves for about twenty minutes. Schaffer opined that the moist heat packs did not cause Reyes s injuries. Schaffer noted that if such injuries were caused by the moist heat packs, then the injuries or full thickness skin loss would have been visible to Reyes s physician during an October 27, 1999, office examination, and Reyes would not have been able to undergo the aquatic therapy in which he participated on October 27, 1999. Furthermore, Schaffer opined that it can not even be established to a reasonable degree of medical probability that the plaintiff s bilateral full thickness skin loss is a burn and that the injury may have been caused by any number of other medical possibilities, including a home heating pad, an insect bite, an allergic reaction, chemical reaction to alkali or acid application, or [his] leg brace. Finally, Schaffer stated that the moist heat packs did not produce sufficient heat to cause Reyes s full thickness skin loss.

Jebo s also produced the report of J. Eftekhar, Ph.D., P.E., a mechanical engineer. Eftekhar tested the heat packs based on the manner in which Reyes alleged they were used. Based on this testing, Eftekhar opined that the temperature of the heat packs could not have caused the burns because the time-surface thresholds for thermal injury of skin were not met.

Melinda Rodriguez was the only expert produced by Reyes in response to the motion for summary judgment. Rodriguez is a licensed physical therapist. Rodriguez opined that Reyes s burns were caused by the moist heat packs; however, in her deposition, Rodriguez admitted that she did not have professional training in the causes of full thickness skin loss and was not licensed to diagnose the cause of full thickness skin loss. Rodriguez admitted that such a diagnosis would require a medical license. Rodriguez admitted that she did not know the temperature moist heat packs would need to reach and how long they would need to be applied to cause the type of full thickness skin loss that Reyes sustained. Rodriguez further admitted that she was not qualified to disagree with the opinion of a board certified plastic surgeon about the cause of full thickness skin loss like that suffered by Reyes. Rodriguez stated that the full thickness skin loss could have been caused by the use of a heating pad at home, an allergic reaction, or an insect bite. Rodriguez admitted that she was speculating from her review of the medical records that the full thickness skin loss was caused by the use of moist heat packs rather than one of the other medical possibilities.

The trial court granted Jebo s objections to Rodriguez s causation testimony. The trial court s order states that the objections were granted because based on the deposition testimony in the summary judgment record Ms. Rodriguez is not qualified to render an opinion on whether moist heat packs caused the Plaintiff s injuries because Ms. Rodriguez is not qualified by experience, training, or education, and her testimony is not reliable.

Discussion

Reyes does not raise any issue on appeal with regard to the trial court s granting of Jebo s objections to the Rodriguez s causation testimony. Accordingly, if expert testimony is required to establish causation, the trial court properly granted summary judgment.

Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of a layman. FTE Transp. Servs., Inc. v. Fulgam, 154 S.W.3d 84, 90 (Tex. 2004). Whether expert testimony is required with regard to an issue is reviewed de novo. Id. at 89. Lay testimony is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. See Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App. Houston [14th Dist.] 2002, no pet.); Russell v. Ramirez, 949 S.W.2d 480, 488 (Tex. App. Houston [14th Dist.] 1997, no pet.); see also Lopez v. Carrillo, 940 S.W.2d 232, 235 (Tex. App. San Antonio 1997, writ denied) (stating causation in medical negligence cases ordinarily must be proven by expert testimony). In this case, a layman would not be able to determine whether moist heat packs could achieve a temperature sufficient to cause the type of burn that would result in the complications experienced by Reyes. Even Rodriguez admitted that she did not know the temperature the moist heat packs would need to reach and how long they would need to be applied to cause the type of full thickness skin loss that Reyes sustained. Because expert testimony was necessary to establish causation, and Reyes did not produce any such testimony, the trial court properly granted summary judgment.

Even if we were to conclude that expert testimony was not required, we would affirm the summary judgment on traditional grounds. Jebo s established as a matter of law through the expert testimony of Eftekhar that the temperature of the heat packs could not have caused the burns because the time-surface thresholds for thermal injury of skin were not met.

Conclusion

The trial court s judgment is affirmed.

Alma L. L pez, Chief Justice